WASHINGTON ― In rescinding a program to protect young undocumented immigrants, the Trump administration insisted on Tuesday that its hands were tied by the courts. If they didn’t end the Deferred Action for Childhood Arrivals program, President Donald Trump and Attorney General Jeff Sessions argued, it would inevitably be blocked by the judicial branch.
But in reality, the legal fate of DACA was far from inevitable. The court decision that Sessions mentioned in his announcement involved a much broader immigration program proposed by then-President Barack Obama that has never been fully judicially adjudicated.
“Our collective wisdom is that the [DACA] policy is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the 5th Circuit,” Sessions said Tuesday.
Yet the federal courts never came to a final determination on the constitutionality of DAPA, otherwise known as the Deferred Action for Parents of Americans and Lawful Permanent Residents program. While a panel of the U.S. Court of Appeals for the 5th Circuit upheld a temporary injunction on DAPA, its fate was never sealed.
Rather than responding to some inescapable legal reasoning, the Trump administration has caved to a threat against DACA by state attorneys general ― although the president said otherwise. Trump said in a statement that “officials from 10 States are suing over the program, requiring my Administration to make a decision regarding its legality.” That is not true. While 10 state attorneys general said they would take legal action if Trump didn’t end DACA by Sept. 5, they have not sued, and one of the 10 has actually backed off his threat.
It’s pretty extraordinary for an administration to throw in the towel based on an internal assessment before a lawsuit was even filed. The Obama administration came under attack from congressional Republicans when it decided not to defend the Defense of Marriage Act in court. But the law still stood ― and the Supreme Court eventually sided with the Obama administration’s judgment.
Trump’s statement claimed that “the Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts have advised that the program is unlawful and unconstitutional and cannot be successfully defended in court.”
There isn’t really such a grand legal consensus against DACA. Just last month, 105 law professors signed an open letter explicitly stating that there was “no question” that DACA was “a lawful exercise of prosecutorial discretion.”
In DAPA’s case, a federal judge granted a temporary injunction against the initiative going into effect in February 2015. U.S. District Judge Andrew Hanen, a George W. Bush nominee, made clear that he was not ruling on the merits of the arguments.
“It is far preferable to have the legality of these actions determined before the fates of over four million individuals are decided. An injunction is the only way to accomplish that goal,” Hanen wrote, concluding that an injunction was the only way to keep the “status quo” in place.
One of Hanen’s concerns was the fate of the undocumented immigrants who might provide personal information to the government in applying for DAPA protections. He warned there could be “dire consequences” for those who came out of the shadows if DAPA were later found to be illegal or unconstitutional.
“The DHS [Department of Homeland Security] ― whether under this administration or the next ― will then have all pertinent identifying information for these immigrants and could deport them,” the judge wrote.
On appeal, a 5th Circuit motions panel ruled that the U.S. had “not made a strong showing” that it was likely to succeed on the merits in the case. “As a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated, deportable aliens would have identified themselves without receiving expected benefits,” the panel wrote in May 2015.
That November, a slightly different 5th Circuit panel upheld the injunction, with a 2-1 majority finding that DAPA was “foreclosed by Congress’s careful plan.” In a footnote, the majority wrote that the Immigration and Nationality Act of 1952 “does not grant the Secretary discretion to grant deferred action and lawful presence on a classwide basis to 4.3 million otherwise removable aliens.”
The Supreme Court deadlocked with a 4-4 ruling in June 2016, which left in place the temporary block on the plan. (The high court had just eight members at the time because Senate Republicans had refused to give a hearing to Merrick Garland, the judge Obama had nominated to replace Justice Antonin Scalia.)
A Justice Department official said that before the DACA announcement, Sessions had received legal advice from lawyers within the department, but declined to say who was involved. The official maintained that Sessions was facing down a court decision that would immediately end DACA and pointed toward outside legal experts who believed the program went beyond constitutional restraints.
But others saw the Trump administration’s legal excuse for ending DACA as just a cover for a political decision.
“Let’s be clear: the action taken today isn’t required legally. It’s a political decision, and a moral question,” said former President Obama.
“This Administration cannot hide behind the excuse of DACA being ‘unlawful.’ It is not,” said Elizabeth Wydra, president of the Constitutional Accountability Center, in a statement. “The Obama Administration acted fully within its constitutional and statutory authority when it recognized that these young people should be able to live, work, and dream just like any other American.”
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, argued that Trump was “acting on tainted and biased ‘legal’ advice” when he “caved to the overstated demands of the Texas attorney general and a dwindling number of other states.”