Conservative states may have boxed President Donald Trump into announcing an end for the Deferred Action for Childhood Arrivals program — but Democratic state attorneys general are already fighting back.
A coalition of 16 Democratic and nonpartisan state attorneys general filed suit in New York federal court on Wednesday to stop Trump’s sunset of DACA — the Obama-era program that protected young undocumented immigrants brought to the US as children from being deported — and they say Trump’s comments about Mexicans should be used against him.
The groups laid out five different constitutional arguments against Trump’s move, saying it was motivated by discriminatory reasons, that it violated due process by being “fundamentally unfair,” and that it violated laws that dictate procedures for federal regulations.
The lawyers note that most DACA recipients are of Mexican origin and devote a whole section to inflammatory statements Trump has made about Mexicans, including his attacks on a federal judge of Mexican descent.
“As President Trump’s statements about Mexico and those with Mexican roots show, the President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency, even when such impulses are impermissible motives for directing governmental policy,” the attorneys general wrote.
Trump’s statements as a candidate and President have been used against him in previous lawsuits, most notably challenges against his travel ban earlier this year.
The lawsuit also devotes a section to Texas, the state that pushed Trump to end the program, using a section to describe Texas as “a state found to have discriminated against Latinos/Hispanics nine times since 2012.”
Trump on Tuesday moved to sunset the DACA program, acting in response to a threat from 10 states led by Texas Attorney General Ken Paxton sent in late June, threatening Trump that they’d sue in an unfriendly court if the President didn’t end the program by September 5.
The President said his administration would not accept any new DACA applications from Tuesday onward and that any two-year DACA permits expiring after March 5, 2018, would not be renewed.
Now, those state officials’ Democratic counterparts are hoping they can have the opposite effect on the administration, succeeding in the courts to reinstate the program that has protected nearly 800,000 young people in its time and currently has nearly 700,000 people enrolled.
“Immigration is the lifeblood of New York State,” New York Attorney General Eric Schneiderman said in a statement. “The Trump administration’s decision to end DACA is cruel, inhumane, and devastating to the 42,000 New Yorkers who have been able to come out of the shadows and live a full life as a result of the program.”
“I filed suit against President Trump and his administration to protect DACA because Dreamers are just as American as first lady Melania Trump,” New Mexico Attorney General Hector Balderas said in a statement.
Justice Department spokesman Devin O’Malley said the department is ready to defend itself.
“As the attorney general said yesterday: ‘No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law,'” O’Malley said. “While the plaintiffs in today’s lawsuits may believe that an arbitrary circumvention of Congress is lawful, the Department of Justice looks forward to defending this administration’s position.”
Difficult road to success
Legal experts say attorneys general have a long road ahead of them.
Trump is not prematurely revoking any permits, choosing instead to let them expire on their normal two-year cycle but not offer any renewals. That may help the administration skirt a challenge based on the revocation of permits, as expirations were allowed for in the original implementation.
The biggest legal argument against rescinding DACA, scholars say, hinges on the federal law that dictates how agencies can make regulations, the Administrative Procedure Act, which lays out a lengthy process that requires ample notice and time for the public to comment on substantive federal rulemaking.
Ironically, the main argument for that line of legal challenge comes from the former biggest threat to DACA: Texas District Judge Andrew Hanen. In his court decision forestalling an expansion of DACA and a similar program for parents, which formed the legal basis of Paxton and the other attorneys general’s threats, Hanen cited the APA’s regulatory requirements.
Hanen determined that move needed formal rulemaking to be put in place. Now, supporters of DACA are poised to argue formal rulemaking is necessary to unwind the program. That would open the Trump administration to a politically painful, lengthy process of getting comment on the impact of the move.
“I wouldn’t say it’s a long shot, (but) I would say it is challenging, just because of the tradition against reviewing prosecutorial discretion,” said Washington University law professor and Obama administration alum Stephen Legomsky. “On the other hand, they do now have this precedent that establishing it requires APA procedure. … It’s a challenging issue.”
Cornell law professor and immigration attorney Steve Yale-Loehr gave the lawsuit even longer odds, saying other arguments, like due process rights being violated, are similarly difficult to prove given that DACA was explicitly set up as a reprieve from deportation, not a right.
“Given the general deference that most courts provide to executive branch decisions on immigration, because immigration touches on national security and national sovereignty issues, they’re going to have an uphill battle in court,” Yale-Loehr said. “I wish them well, but as far as I can tell, I think they’ve got a less than 50% chance of winning in court.”
Still, cities and states have succeeded in the courts against the Trump administration since early in his presidency, getting courts to block policies including the travel ban and sanctuary cities threats.
There is already at least one lawsuit on the books against Trump’s move: An undocumented immigrant and DACA recipient filed a suit on Tuesday, largely on the same grounds discussed by Legomsky and Yale-Loehr.
The states challenging the move are New Mexico, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.