Eric Schneiderman for Attorney General

Democrats Begin Legal Assault on Trump’s Move to End ‘Dreamer’ Program

September 7, 2017

As published by The New York Times, on September 6, 2017.

President Trump’s immigration policies faced a renewed legal onslaught on Wednesday, as a coalition of Democratic attorneys general, nonprofit groups and private companies announced they would oppose his rollback of Obama-era protections for people who entered the country illegally as children.

In an echo of the campaign against Mr. Trump’s effort this year to ban travelers from parts of the Muslim world, a group of 16 attorneys general — all Democrats — filed suit in Federal District Court in Brooklyn, claiming that Mr. Trump had improperly upended the policy known as Deferred Action for Childhood Arrivals or DACA.

Led by Attorneys General Eric T. Schneiderman of New York, Maura Healey of Massachusetts and Bob Ferguson of Washington, they alleged Mr. Trump’s shift was driven by racial animus toward Mexican Americans and that the Trump administration failed to follow federal rules governing executive policy making.

On Tuesday, Attorney General Jeff Sessions announced that the Trump administration would phase out DACA beginning next March. The decision came as a group of Republican attorneys general threatened to sue the administration if it did not end the program.

Announcing the legal challenge Wednesday alongside a crowd of young immigrants and immigration advocates, Mr. Schneiderman accused the Trump administration of using the threat of lawsuits as a “pretext” that hid the president’s true motives: bias against immigrants and Latinos.

Mr. Schneiderman’s lawsuit said that “ending DACA, whose participants are mostly of Mexican origin, is 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.”

In an interview on Wednesday, Mr. Schneiderman said, “We think the court will take a look at what’s behind the change in policy and conclude that the rationales offered yesterday don’t make any sense.”

Additional lawsuits are expected: Attorney General Xavier Becerra of California, a Democrat, intends to file a separate challenge to Mr. Trump’s plans, according to people briefed on his plans. Several major companies intend to join the lawsuits, and two, Microsoft and Amazon, have pledged to pay the legal expenses of any employees who become vulnerable to deportation.

The loosely coordinated legal strategy faces uncertain prospects, and may represent a kind of precautionary measure for supporters of DACA, who are also engaged in a ferocious campaign aimed at spurring Congress to pass a law protecting people in the program from deportation. The litigation is likely to become a political rallying point for opponents of Mr. Trump, and should the legislative effort fizzle, a court challenge could become an alternative vehicle to derail or delay his policies.

To some extent, the court battle could reproduce some of the arguments surrounding Mr. Trump’s travel restrictions, pitting the traditionally sweeping powers of the presidency against claims that this particular administration, on a specific matter of policy, had misused its authority.

But presidents typically have broad discretion in matters related to national security and border control, and legal opponents of Mr. Trump’s policy are in the awkward position of arguing that while President Barack Obama had the presidential authority to create DACA, Mr. Trump does not have the authority to freely undo it. And the government can also assert that undercutting Mr. Trump’s decision to rescind the program would impinge on his power to enforce immigration law.

Jonathan Turley, a professor at George Washington University Law School, said Mr. Obama’s program was always going to be vulnerable to the whims of his successor.

“It’d be rather curious if President Trump could not use the same authority that President Obama used to create DACA,” Mr. Turley said. Echoing conservative arguments that Mr. Obama had overstepped his power, he added: “This is a problem you have when you ignore the constitutional structure. This matter should’ve always remained in Congress.”

Besides the argument that the Trump administration has violated the equal protection clause of the Constitution, the lawsuit filed Wednesday makes a more complex claim, saying that the administration failed to follow the right process, under the Administrative Procedure Act, for shutting down Mr. Obama’s program.

The states argue that DACA had become so entrenched in the immigration system that to abruptly end it was “arbitrary and capricious,” and that such a U-turn demanded a better explanation than what administration officials offered on Tuesday.

“Numerous public officials from both political parties have reinforced the federal government’s promise to provide continuity and fair treatment to DACA grantees, and have recognized that DACA grantees have relied on the government’s representations in applying for DACA,” the lawsuit said.

Michael J. Wishnie, a professor at Yale Law School who is helping to sue the administration on behalf of a DACA recipient in a separate lawsuit, said officials were, of course, allowed to change a policy.

“But when people have come to rely on it,” he said, “they have to explain themselves.”

Andrew J. Pincus, a Washington-based lawyer who has argued frequently before the Supreme Court, suggested Mr. Trump’s approach to DACA might be vulnerable in court, in part because he had done relatively little to justify it as a matter of policy.

The Trump administration has cast its withdrawal of Mr. Obama’s policy largely as a matter of legal necessity, arguing that DACA would be unlikely to survive the expected challenge from Republican attorneys general. Devin O’Malley, a spokesman for the Justice Department, defended the DACA announcement as a corrective to Obama administration overreach.

“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,” Mr. O’Malley said.

But Mr. Pincus said that if a court finds the underlying DACA policy is legal, it could unravel that rationale.

“The whole basis for rescinding DACA is the conclusion that it’s illegal,” said Mr. Pincus, who is a supporter of the Obama administration policy. “If you’re wrong, your decision is arbitrary and an abuse of discretion.”

In casting DACA aside on Tuesday morning, Mr. Sessions said that the power to protect young immigrants from deportation lay with Congress alone. But Mr. Trump may have snarled his own attorney general’s argument by tweeting, just eight hours after the announcement, that if Congress did not act, “I will revisit this issue!” The post, Mr. Turley said, seemed to suggest that the president did, in fact, have the authority to intervene on behalf of the Dreamers, as DACA recipients are known.

In the short term, the legal offensive may help galvanize further political opposition to Mr. Trump’s decision, offering activists, businesses and other interest groups a way of magnifying their objections through court filings and placing additional pressure on lawmakers to act. A number of private companies, including Microsoft, Amazon and Starbucks, have filed or are expected to file briefs supporting the multistate lawsuit.

Brad Smith, Microsoft’s president and chief legal officer, indicated the company would use its considerable resources to oppose Mr. Trump’s policy in other ways: He said in a blog post on Tuesday that Microsoft would pay for the legal costs of any employee the government threatens to deport, and the company said in a legal document that 39 DACA beneficiaries were “employees or current or recent interns.”

Like Microsoft, Amazon said it intended to pay for legal representation for its affected employees, and stated in a legal filing on Wednesday that it had identified nine employees who qualified.

Several state attorneys general said they were taking steps to thwart Mr. Trump’s immigration policy in other ways. Mr. Schneiderman said his most immediate concern was to protect the sensitive information immigrants had supplied to the government while applying for DACA status, including addresses and fingerprints.

Immigration officials said on Tuesday that information would not be “proactively” used to arrest the immigrants after DACA expires but could be made available for criminal and national security investigations.

Mr. Becerra said the forthcoming litigation from his office would be one part of a larger strategy to marshal resistance to Mr. Trump’s immigration order. “I don’t care if it’s in the court of law or in the court of public opinion, we’re going to fight,” Mr. Becerra said.