Attorneys General from 15 States, D.C. sue to save DACA

September 6, 2017 – A group of attorneys general from 15 states and the District of Columbia filed a lawsuit Wednesday to stop the administration from winding down the DACA program, which granted a reprieve from deportation to undocumented immigrants who came to the United States as children.

The suit, filed in federal court in the Eastern District of New York, alleges that rescinding the Deferred Action for Childhood Arrivals (DACA) program was a “culmination” of President Trump’s “oft-stated commitments — whether personally held, stated to appease some portion of his constituency, or some combination thereof — to punish and disparage people with Mexican roots.”

The suit says that unwinding the program would damage states because DACA beneficiaries pay taxes, go to state universities and contribute in other ways, and that phasing out the program would jeopardize their ability to do those things.

“Rescinding DACA will cause harm to hundreds of thousands of the States’ residents, injure State-run colleges and universities, upset the States’ workplaces, damage the States’ economies, hurt State-based companies, and disrupt the States’ statutory and regulatory interests,” the attorneys general wrote in the suit.

Justice Department spokesman Devin M. O’Malley said in a statement: “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.’ 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.”

The states listed as plaintiffs in the lawsuit are New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia, along with the District of Columbia.

In Maryland, Attorney General Brian E. Frosh (D) is “considering all options” on how to protect the roughly 800,000 undocumented immigrants who were brought to the United States as children, a spokeswoman said Wednesday.

U.S. Attorney General Jeff Sessions announced Tuesday that the administration was ending the DACA program, saying that officials had reviewed it because of threatened litigation from the state of Texas and others and determined it to be unconstitutional. That is a reversal of the Justice Department’s position in the previous administration.

The program, which has allowed nearly 800,000 immigrants who came to the United States as children to obtain temporary work permits and other benefits, will be unwound gradually. Immigrants already enrolled can stay until their two-year work permits expire, and those whose permits expire through March 5, 2018, are allowed to seek renewals if they apply by Oct. 5. Advocacy groups are scrambling to meet that deadline to help about 150,000 DACA recipients renew their status.

Trump and Sessions cast the decision to end the program as one made out of respect for the constitutionally mandated separation of powers. President Barack Obama, they said, essentially overstepped in ordering the initiative when Congress wouldn’t pass legislation. The president, though, suggested on Twitter he would “revisit this issue” if Congress failed to take action to revive the program.

Legal analysts have said lawsuits to save DACA were likely to face an uphill battle to be successful. That is because the same authority that gave Obama’s Department of Homeland Security the ability to implement the program would give the Trump administration the ability to undo it.

In 2014, the Justice Department’s Office of Legal Counsel said the program was constitutional but noted that the benefits conferred “could be terminated at any time at DHS’s discretion.”

D.C. Attorney General Karl A. Racine (D), a naturalized U.S. citizen whose family emigrated from Haiti when he was a child, acknowledged that challenges lay ahead for the plaintiff states. But, Racine said, the claim that racism spurred the revocation of DACA benefits could be particularly compelling.

He noted that courts, in their rulings on the president’s proposed bans on travel from majority-Muslim countries, have shown a willingness to consider Trump’s comments on the campaign trail as evidence of bias against a specific minority group.

“Look, it’s a tough case,” Racine said. “We think there are enough references to his comments — both before he was president and while he was president — that illustrate a bias against Mexicans.”

Massachusetts Attorney General Maura Healey said those suing believed the “arbitrary and capricious way” that DACA was rescinded made the action unlawful.

“You still need a valid, a lawful justification to end the program,” she said. “Animus cannot provide such a justification.”

The lawsuit from the state attorneys general traces how DACA recipients have become a part of the fabric in the states where they live — attending prestigious schools such as Harvard University and working at state jobs. It alleges that removing their ability to live in the United States without fear of deportation could have severe financial consequences.

The lawsuit says that one expert estimated that rescinding the DACA program would cost New York state $38.6 billion over the next 10 years.

“We know that when bullies step up, you have to step to them and step to them quickly, and that’s what we’re here to do today,” New York Attorney General Eric Schneiderman (D), a frequent critic of Trump, said at a news conference to announce the lawsuit.

The lawsuit notes that Trump, in the past, made positive statements about DACA recipients but also alleges he has “a long history of disparaging Mexicans, who comprise the vast majority of DACA grantees,” citing as evidence his public statements.

The suit says revoking DACA would violate components of the Fifth Amendment, along with the Administrative Procedure Act, which “prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute.” It asks a judge to stop the administration from rescinding DACA as well as bar the government from using DACA recipients’ information, which they submitted to the government voluntarily, to deport them if the program is revoked.

By Matt Zapotosky, The Washington Post
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