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.
New York Attorney General Eric Schneiderman and Washington state Attorney General Bob Ferguson will announce multi-state legal action on Wednesday, according to separate releases from their offices. On Tuesday, California Attorney General Xavier Becerra also announced he was prepared to sue the Trump administration over DACA.
Still, legal scholars believe the challenges have an uphill climb to succeed in the courts.
The backlash was expected. In July, all three officials were part of a 20-state coalition of Democratic or non-affiliated attorneys general that wrote to Trump urging him to preserve DACA, outlining why they believed the program was constitutional and saying they stood ready to defend the program.
The states were responding to an opposite letter 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 sunset the program by September 5. Tennessee announced last week that it would no longer pursue the lawsuit, but the other nine states remained committed.
Trump met their demand on Tuesday, announcing that his administration would not accept any new DACA applications from Tuesday on and that any two-year DACA permits expiring after March 5, 2018, would not be renewed. The Obama-era program protected young undocumented immigrants brought to the US as children from being deported and allowed them the ability to work and study. Texas later filed in court that it would no longer pursue a challenge to DACA.
Now, those state officials’ Democratic counterparts are hoping they can have the opposite effect, 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.
“President Trump has turned his back on hundreds of thousands of children and young Americans who came forward and put their trust in our government. But in terminating DACA, the Trump administration has also violated the Constitution and federal law,” Becerra said in a statement on Tuesday.
“President Trump’s decision to end the DACA program is cruel, gratuitous and devastating to tens of thousands of New Yorkers — and I will sue to protect them,” Schneiderman said in a statement Tuesday. “My job is to protect all the residents of New York — no matter where they come from … and I will use every legal tool I have available to make sure they get the opportunity to live the American dream, just like millions of New York immigrants before them.”
Difficult road to success
Legal experts believe despite the high profile of the lawsuit, the 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.