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Can these Democratic attorneys general save DACA? I asked 9 legal experts.

Protesters Demonstrate Against President Trump's Decision To End DACA Outside The Justice Department
Protesters rally in Indiana Square before marching to the Department of Justice to demonstrate against the Trump Administration's decision to end the 2012 Deferred Action for Childhood Arrivals (DACA) policy September 6, 2017 in Washington, DC.
Photo by Chip Somodevilla/Getty Images

Almost immediately after the administration announced its plans to end the Deferred Action for Childhood Arrivals (DACA) program — thereby removing deportation protection and work permits from roughly 800,000 unauthorized immigrants — a legal battle was underway.

A group of 16 Democratic and nonpartisan state attorneys general filed suit in New York federal court to keep the program going.

“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,” the lawsuit states.

But since immigration policy is widely considered to be at the discretion of the federal government, how effectively can these state officials fight the Trump administration’s initiative?

I reached out to nine legal experts about whether these Democratic governors and attorneys general have the constitutional authority to challenge the Trump administration.

While there isn’t a clear consensus, most experts agree that Democrats are facing an uphill legal battle. The basic problem is that President Barack Obama’s DACA program was never enshrined into law; it was a special program at the discretion of the executive. But, as Ilya Somin, a law professor at George Mason University, told me, that “means that his successor has the power to rescind it whenever he wants to, even if his action is cruel and unjust.”

But the blue states challenging the repeal of DACA still have a few arguments to make. Renato Mariotti, a former federal prosecutor, says it’s “a violation of due process to take advantage of a citizen’s reliance on prior government assurances or directives.” In this case, individuals who signed up for DACA had to hand over their private information, which might now be used against them for deportation action. That is arguably unconstitutional.

There is also a case to be made that terminating DACA will violate the equal protection clause of the 14th Amendment. Here, as with Trump’s travel ban, the racial animus he’s shown towards the people who will be targeted by this could be used against him.

The nine legal experts’ full responses, edited for clarity and style, are below.

It’s an uphill battle, but there’s a due process and equal protection challenge to the Trump administration

Renato Mariotti, former federal prosecutor, 2007 to 2016

We can expect to see many challenges to the Trump administration’s decision to end DACA in the months ahead. Many state attorneys general have already announced a joint effort to challenge the decision as caused by anti-Mexican bias. As they did in challenging the travel ban, state attorneys general will use the statements of Trump, Attorney General Jeff Sessions, and other administration officials against them, this time to prove that the administration’s stated reason for ending the program — that DACA is unconstitutional — was a pretext for discrimination.

Those efforts face an uphill battle, although the administration made their job easier by making the announcement without explaining why they believe DACA is unconstitutional or displacing the 2014 opinion of the DOJ’s Office of Legal Counsel that the law was constitutional. I also expect to see lawsuits that seek to limit the government’s ability to use the information provided by DREAMers against them.

As I explained yesterday in the Hill, a due process challenge to the use of information provided by DREAMers in their application against them should be successful. Under long-standing Supreme Court precedent, it is a violation of due process to take advantage of a citizen’s reliance on prior government assurances or directives.

Jessica Silbey, law professor, Northeastern University

There may be several grounds on which state attorneys general may challenge DACA’s rescission as it affects state residents. If its cancelation is “arbitrary and capricious” or without sound basis, it may violate the Administrative Procedures Act (the APA). Perhaps more obvious is that DACA’s repeal targets people based on their national origin and disproportionately affects people from Mexico and Central American countries.

Like the travel ban, which has been determined by many federal courts to violate the equal protection clause of the 14th Amendment because it targets people outside the country on the basis of national origin and also religion, DACA’s repeal may also violate the 14th Amendment’s equality provision because it targets people in the country on the basis of national origin and ethnicity.

Just like it is hard to believe the president’s claim that the travel ban was not about banning people from certain countries on the basis of religious affiliation, is hard to believe that if DACA affected a majority of white European immigrants, from Ukraine or Slovenia, for example, General Sessions and the president would have recommended repeal.

Finally, there is a plausible due process claim under the Fifth Amendment based on a person’s reasonable reliance that the government will treat them fairly. To sign up for DACA, a person had to turn over private information. Now that information will be used against them for deportation action. That seems fundamentally unfair and a possible constitutional violation as well.

Judith Resnik, law professor, Yale University

The lawsuits are predicated on a simple proposition: the government cannot be arbitrary in its treatment of people. The foundation is the Due Process Clause, which guarantees that government cannot deprive individuals of life, liberty, and property without due process of law. A shorthand for this obligation is “Rule of Law,” and it has been part of the U.S. Constitution since the eighteenth century’s bill of rights. The central idea is that the Government can’t just switch gears without rhyme or reason. It can’t ignore facts that it has depended on in the past, especially when people, employers, educational institutions, and state governments, have relied on them.

How does the rule of non-arbitrary treatment apply here? The bases for DACA were to help children brought here when young. The facts on the ground since the program came into existence have substantiated the wisdom of reaching out to the young people who came to the U.S. And, the program has proven to be in the country’s economic self-interest. Thousands of “Dreamers” have gone to school, worked in businesses, become professionals, and provided goods and services around the country.

Another legal precept supporting the lawsuits is that reasons for government action can’t be based on invidious discrimination. Here, a series of statements by both the President and the Attorney General have raised serious concerns that the motivation for withdrawing the DACA program is hostility to welcoming Latinos and Mexicans as members of this country. Constitutional democracies — of which the US is one of the oldest — refuse to permit government officials to act either arbitrarily or based on impermissible forms of discrimination.

The challengers to the DACA proposed withdrawal include Attorneys General, who have special obligations to protect the safety and stability of their states. They need to ensure their communities’ well-being. Thus, it is crucial to have the Attorneys General at the forefront of protecting DACA recipients, their families, employers, schools and universities. That some other Attorneys General have called for repeal does not undermine what these Attorneys General are doing: recommitting to the rule of law by going to court to prevent the arbitrary withdrawal of DACA.

Stephen Legomsky, law professor, Washington University

I think the states challenging the repeal of DACA have three very plausible legal arguments. One argument is that, since a court has held that such a program can be established only through a formal rule-making procedure, so too it can be rescinded only in that way.

Second, there is ample evidence in the record, especially President Trump's campaign statements, to support the argument that the rescission was motivated by racial animus.

And third, the law prohibits government action that is arbitrary or capricious. The Supreme Court has held that this means there must be a reasoned explanation, which the government has yet to provide in this case.

DACA isn’t the law of the land. Obama changed his enforcement priorities, and Trump can do the same.

Stephen Yale-Loehr, law professor, Cornell University

I think legal challenges to the DACA program’s rescission face a tough battle in the courts, for several reasons. First, courts are generally more deferential to immigration actions by the executive branch than in other areas of the law because immigration touches on sovereignty and national security.

Second, courts generally don’t review challenges to how the government exercises prosecutorial discretion. Third, while the lawsuits may charge that terminating the DACA program is motivated by racial animus against Mexicans, the connection between discriminatory statements made by the Trump administration and the DACA program’s rescission is not as close as in the travel ban case now pending before the Supreme Court.

However, one court struck down the Obama administration’s effort to create a similar deferred action program for undocumented parents of US children, ruling that the Obama administration failed to follow the notice and comment requirements of the Administrative Procedure Act (APA). Plaintiffs are sure to argue that the APA also applies to terminating the DACA program, and that the Trump administration failed to do that here. In essence, they will claim that what is sauce for the goose is sauce for the gander. It will be interesting to see how a court rules on that issue.

Eric Posner, law professor, University of Chicago

President Obama called DACA “a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.” He was trying to assure the public that he was not claiming the power to change the law on his own, but that he was merely declining to enforce the law based on his authority as the head of law enforcement. Obama could have changed his enforcement priorities at any time, and so can his successor. There is nothing Democratic attorneys general can do about this.

Ilya Somin, law professor, George Mason University

I wish the situation were otherwise. But I fear it will be very difficult to save DACA through legal action. The argument for the constitutionality of DACA is that this is an issue within the enforcement discretion of the executive. That means President Obama did not act illegally when he adopted DACA without specific congressional authorization.

But it also means that his successor has the power to rescind it whenever he wants to, even if his action is cruel and unjust. Barring an unlikely change of heart by Donald Trump, the most likely way to reinstate DACA is by legislative action. If successful, this approach would also have the virtue of ensuring that the fate of DACA participants is no longer left to the whim of whoever occupies the White House. Many members of Congress in both parties say they support protecting DREAMers. They should be pressured to live up to their word.

The recent lawsuit against DACA repeal filed by 16 blue states makes several creative arguments, but all seem like long shots, at least so far. One is that DACA repeal requires the use of complicated “notice and comment” rule-making procedures under the Administrative Procedure Act. The most obvious difficulty with this theory is that DACA was initially adopted without using the notice and comment process. It would be unusual if its repeal required more procedural hoops than its initial adoption.

More promising is the theory that DACA repeal is unconstitutional because it is motivated by discriminatory ethnic animus against Mexicans, an argument similar to the one embraced by some lower court decisions that have invalidated Trump’s “travel ban” executive order on the grounds that it was motivated by discrimination against Muslims. But the travel ban order was a direct outgrowth of Trump’s campaign promise to adopt a “Muslim ban,” thus making the discriminatory motive especially clear and strong. The link between DACA repeal and Trump’s many anti-Mexican statements is more equivocal and harder to prove. It remains to be seen whether the plaintiff states can produce sufficient evidence to draw a strong enough connection.

Peter Margulies, law professor, Roger Williams University School of Law

The states’ challenge to DACA's rescission will have the most clout in the court of public opinion. But don’t expect the lawsuits to substitute for action by Congress.

The states’ core legal argument is that before rescinding DACA, the Trump administration should have formally sought input from immigration advocates and other interested parties (federal law calls this process notice and comment). This argument’s fatal flaw is that the Obama administration implemented DACA without any such formalities, terming DACA a routine exercise of prosecutorial discretion that did not require more elaborate procedures.

The Supreme Court has long held that the government can revoke such exercises in prosecutorial discretion at any time. The Trump administration merely exercised the discretion that Obama administration officials claimed was central to the program’s legality. So don't expect a judicial lifeline for the DREAMers. Persuading Congress to act is the main event.

The economic case to preserve DACA

Asha Rangappa, associate dean, Yale Law School

For the same reasons that the Ninth Circuit twice found standing in the travel ban cases (for Washington and Hawaii), state attorneys general could have “derivative standing” to bring suit against the president based on the economic harms that rescinding DACA would have on state interests. For instance, states like California allocated $16 million to organizations to assist residents in preparing DACA applications, and that money is now down the drain.

States will spend more on family services when families are separated or children left without one or both parents and sources of financial support. State universities may have offered private or state loans to DACA students (who are ineligible for federal aid) — all of which will be defaulted upon by students who are removed mid-education and unable to find employment after deportation.

Lastly, businesses who hired DACA-authorized employees will have to spend money policing and terminating these individuals and training and hiring new people, once again at a net loss. In short, states can demonstrate that they (and their residents, schools, and businesses) “relied” on the assurances of DACA to make significant budgetary decisions, and that rescinding DACA would have a significant adverse impact on their economy.