Inside the Hail Mary lawsuits seeking to save DACA

Originally published by Think Progress

Not long after President Donald Trump announced his plans to end the Deferred Action for Childhood Arrivals (DACA) program, potentially opening 800,000 immigrants up to deportation, a wave of lawsuits were filed to save DACA – or, at the very least, to mitigate some of the impact of Trump’s move. They include asuit filed by the state of California and a separate suit brought by 15 states plus the District of Columbia, which is led by the state of New York.

As a practical matter, it is very unlikely that these suits will prevent Trump from killing the DACA program. But there is a chance they will prevent his administration from subjecting DACA recipients to an especially cruel practice.

Regardless of the suits’ objective merits, they probably won’t find enough support in the nation’s highest court. Four Supreme Court justices voted to kill President Obama’s efforts to extend DACA-like relief to other groups in 2016 (though they did not explain why they wished to do so). Now, those four are joined by the unflinchingly conservative Neil Gorusch. It’s hard to imagine that judges who doubt the legal validity of DACA-like programs in the first place will turn around and hold that Trump is not allowed to eliminate those programs.

Nevertheless, it is possible that the courts will decide that Trump cannot effectively place DACA beneficiaries in a much worse position than they would be in if DACA never existed.

The New York suit’s strongest argument concerns the information DACA beneficiaries turned over to the federal government in order to apply for the program. As part of their application, immigrants had to provide a bevy of personal information, including their home address, to the government. Now, there are questions about what the Trump administration may do with this sensitive information – and whether it could be used to target DREAMers for deportation.

U.S. Citizenship and Immigration Services, the agency which keeps that data, told ThinkProgress’ Esther Yu Hsi Lee that information provided in a DACA request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings, except in limited circumstances. Nevertheless, DACA beneficiaries understandably fear that a Trump-led government will not honor this policy moving forward.

As the New York suit notes, DACA beneficiaries received numerous assurances that their information would, in the words of then-Homeland Security Secretary Jeh Johnson, not later be used for immigration enforcement purposes. To walk back this promise now, the suit claims, would be a fundamentally unfair violation of the Constitution’s guarantee of Due Process.

It’s an interesting argument, supported by longstanding caselaw. As law professor Zachary Price notes in an op-ed published shortly after the 2016 election:

In the 1959 case Raley v. Ohio, the Supreme Court held that witnesses before a legislative commission could not be prosecuted for refusing to answer questions when the commission itself had told the witnesses they could decline to answer self-incriminating questions. Doing so, the court said, would amount to the most indefensible sort of entrapment by the State. Similarly, in the 1965 case Cox v. Louisiana, the court held that the government could not prosecute protesters for demonstrating in a location where the police had said the protest was allowed.

Applying Raley and Cox to the immigration context would be an extension of these precedents, but hardly an unreasonable one. Moreover, while swing Justice Anthony Kennedy has, at times, seemed conflicted about which due process protections typically afforded to the criminally accused should be extended to immigration proceedings, he has at least been open to such extensions in the past. That may be enough to get a court order preventing the government from using DACA beneficiaries’ applications to track them down and deport them.

Beyond this issue, the bulk of the lawsuit raises several clever arguments that seem unlikely to succeed.

In an argument that hearkens back to the Muslim ban cases – where Trump’spast promises to implement a Muslim ban were used to prove that Trump’s travel ban was, indeed, implemented for the purpose of banning Muslims – the New York suit argues that Trump’s past racist statements against Mexican nationals suggest that he also acted with an improper intent when he called for an end to DACA.

Suits alleging an illegal purpose, however, are notoriously difficult to win. And Trump’s anti-Mexican statements did not include an explicit call to end DACA in order to spite Mexicans – unlike his promises to implement a Muslim ban.

Similarly, the suit claims that Trump failed to jump through the appropriate procedural hoops when he announced his intention to wind down DACA.

A glaring problem with this claim, however, is that the Obama administration also did not jump through these hoops when it created DACA in the first place. As law professor Daniel Hemel argues, there is some lower court precedents supporting this procedural argument, but it is very unlikely that the courts will let DACA supporters have it both ways here. And even if the procedural argument does prevail, Trump can still get around such a court decision by simply jumping through the hoops.

While the suits may prevent the government from tossing DACA beneficiaries into an especially cruel trap, a successful rescue operation for the DACA program as a whole would likely have to come from the White House, or from an act of Congress.

Read more: thinkprogress.org/lawsuits-seeking-to-save-daca-edc806ad69d8/