DACA Appeal Puts Justice Lawyers on Defensive

WASHINGTON (CN) – The D.C. Circuit sunk its teeth into the Trump administration Friday about its rationale for abruptly shuttering a program that had been a lifeline to roughly 800,000 immigrants who lacked documentation after entering the United States as children.

Secretary of Homeland Security Kirstjen Nielsen speaks to George Washington University’s Center for Cyber and Homeland Security in Washington on Sept. 5, 2018. (AP Photo/Cliff Owen)

In addition to temporary protection from deportation, the Obama-era program known as Deferred Action for Childhood Arrivals offered qualifying participants work authorizations and driver’s licenses.

Though a federal judge ruled last year that the decision by Homeland Security to terminate DACA was “arbitrary and capricious,” Justice Department attorney Mark Stern tried to make the case this morning before the D.C. Circuit that the agency’s decision is not judicially reviewable.

“There no case, that I’m aware of, in which an agency says, ‘I’m going to enforce the law,’” Stern said. “Everyone agrees that it can enforce the law. And nevertheless there is an attempt to review that decision.”

Former Attorney General Jeff Sessions declared the program unconstitutional in September 2017, saying it likely would not withstand court challenges brought during the Obama administration by conservative states. This spurred Acting Homeland Security Secretary Elaine Duke to issue a memo rescinding the program, citing Sessions’ determination of its unlawfulness.

But the three-judge appellate panel put their focus today primarily on a memo in which Homeland Security Secretary Kristjen Nielsen cited policy considerations for ending DACA, not the mere legal authority to do so.

“In my mind there’s little question that there’s authority given to the executive under these circumstances to rescind DACA,” said U.S. Circuit Judge Thomas Griffith, a George W. Bush appointee. “Let’s just for the sake of argument say that. The question is, was it done adequately here?”

Neilsen wrote the memo after the District Court gave the government another opportunity to explain the rationale behind ending DACA, which the court ultimately found unpersuasive, prompting U.S. District Judge John Bates to order the government to continue processing renewal applications.

Judge Griffith expressed frustration repeatedly at the hearing today with the government’s position.

“It’s not hard to figure out how to change a policy of a prior administration,” he said. “It’s not difficult to do that.” 

Stern pointed to Duke’s memo, which says that only Congress can legislate a policy like DACA, but U.S. Circuit Judge Harry Edwards took issue with Stern’s premise that the court can’t review the decision to rescind DACA.

A Carter appointee, Edwards said the issue falls under the realm of the Administrative Procedure Act, which requires agencies to have a reasoned basis for regulatory actions.

As such, Edwards said the government needed to show that DACA was unlawful, as Sessions had determined.

“You have to explain, in an acceptable way, how you’re going to get rid of that policy,” Edwards said.

“This is a reviewable action,” the judge added later. “The starting point is a policy that you now want to get rid of, an enforceable policy, and you have to explain it.”

Meanwhile U.S. Circuit Judge Patricia Millett, an Obama appointee, noted that rescinding DACA is not just an enforcement decision, but has regulatory components because it involves more than a prosecutorial decision to remove DACA recipients.

“We are ending your ability to work,” Millet said. “We are ending your ability to go to school. We are ending your ability to do … all the things that come with deferred action status.”

Jenner Block attorney Lindsay Harrison, arguing on behalf of the National Association for the Advancement of Colored People, also faced tough questions.

Harrison argued that Nielsen’s memo was not properly before the court because an agency must explain its rationale for an action at the time that action was taken, not down the road.

Edwards interjected, noting that post-hoc rationalizations happen regularly when cases get remanded.

“As long as it’s provided by the proper person, and in this case it was, bring it on,” Edwards said.

Millet adopted a similar line of questioning, pondering why agencies can’t provide additional rationalizations on remand.

“In our view you don’t want the agency inventing rationales after the fact that appear to be invented for the purposes of litigation,” Harrison responded.

The judges did not say when they would issue a ruling. For now, Homeland Security has been ordered to process renewal applications, though Bates issued a stay on new applications pending the D.C. Circuit’s ruling.

The Supreme Court has not said yet whether it will take up the matter.

%d bloggers like this: