A look at how Trump's DACA decision may play out in the courts

Sunday , September 10, 2017 - 5:00 AM

E. KENT WINWARD, special to the Standard-Examiner

Strange how attorneys live in a world where the sentiments from a Sunday pulpit, teaching the Sermon on the Mount, are in direct conflict with the legal arena: “Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.” The conflict arises because the whole point of an attorney's job is to get a client judged, and judged favorably.

This last week has created a furor over the Trump administration’s decision to end Deferred Action of Childhood Arrivals in the next six months. The announcement by Attorney General Jeff Sessions about DACA’s demise is already headed to the courtroom. Judges will be judging. As we saw with the executive order on the immigration ban earlier this year, it only takes one federal district judge to put a halt to a presidential order.

If you're wondering what DACA is, I'll give a short summary: The Obama administration implemented a program for deferred action on the immigration status for children under the age of 16 brought into the United States before 2007, who were no older than 30 in 2012 and have lived here continuously since. Basically, it allows for young adult immigrants to get a Social Security number, a job, and to go to school. The number of young adults impacted across the country is approximately 800,000. The eligible number in Utah is somewhere around 17,000.

To obtain the deferred status, these young people must pay a $495 fee. Other conditions: the young adult cannot have any serious criminal convictions and must be working or in school. It does not grant them "official citizen" status, and it's only good for two years; however, the deferment is renewable as long as the person complies with the conditions set forth. The idea behind the program was the classic American Dream: Work hard and find opportunity. Based on that very American sentiment, these young immigrants were given the nickname “Dreamers.” (Quick side note: all of this furor and litigation could be avoided if the Senate and House of Representatives act quickly and pass immigration reform to protect these young Dreamers.)

So how will the repeal of DACA play out in the courts? Here's a brief summary of some legal arguments that will be presented:

Standing and the states

Some of the most important legal challenges to the decision will be brought by individual states impacted by the decision. The biggest legal question in these lawsuits will be whether the states have the right to sue the United States, or in legalese, determining if the states have “standing.”

This argument dates back to a challenge by 26 states, including Utah, of a different immigration program during the Obama administration. A Texas judge ruled in 2014 that the individual states indeed had legal standing to bring the lawsuits. The Supreme Court split 4-4 on the standing issue, so it remains unresolved. The same standing theories then allowed individual states to challenge the travel ban at the start of the Trump administration.

The Administrative Procedure Act

Most challenges to the DACA decision will be brought under the law known as the Administrative Procedure Act. The law allows courts to review actions by an administrative agency, which, in this case, is the immigration agency under the Department of Homeland Security. Anyone adversely affected by an administrative action has the right to request judicial review. There are already lawsuits pending related to DACA based on this act, and there will be more. Creating an administrative procedure then changing it in an arbitrary manner is not permitted under the APA. The non-legalese version: You can’t change the rules in the middle of the game.

The remaining legal question that won’t be the subject of litigation is whether the president has the power to defer deportation. Presidents have been deferring deportation since 1956 and Eisenhower. President George H.W. Bush implemented a similar “Family Fairness” program in 1990 that protected around 40 percent of immigrants who did not enter the United States lawfully. The Code of Federal Regulations lists which non-U.S. citizens are allowed to be legally employed,and includes those “whose enforced departure from the United States has been deferred in accordance with a directive from the President . . . for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive.” The rules show how historically, presidents have exercised the power to defer immigration action in order to enforce the law with humane consideration for families, as well as hard-working people who believe in the American Dream.

The Trump administration’s defense of its announcement that DACA is being discontinued doesn’t comport with history, the rules, or even its own earlier attempts to use executive power to thwart and control immigration.

So judges will be judging, using decisions that have been issued in earlier cases, but there are other parts of the Sermon on the Mount we should not forget — portions that have to do with forgiveness and mercy.

I think one former president was channeling the attitude of the Sermon on the Mount when he said, “I believe in the idea of amnesty for those who have put down roots and who have lived here even though sometime back they may have entered illegally.” Yes, in 1986, President Ronald Reagan worked with Congress to pass the largest immigration amnesty program in United States history, giving almost 3 million immigrants the opportunity to legally live and work in America.

How will this Congress and president respond? One more wise precept from the Sermon on the Mount to help us judge: “By their fruits ye shall know them.”

E. Kent Winward is an Ogden attorney. Twitter: @KentWinward.

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