March 14, 2018

A D.C. federal judge repeatedly pressed U.S. Department of Justice lawyers on Wednesday to explain the legal analysis undergirding the revocation of the Deferred Action for Childhood Arrivals program.

DACA is already in a state of limbo after a series of federal court injunctions in other lawsuits blocked the Trump administration from ending it by an administration-imposed March 5 deadline. In trying to duck the latest suits brought by the NAACP and several unions, along with Microsoft Corp. and Princeton University, DOJ attorneys argued that ending DACA was a matter of pure discretion, only for U.S. District Judge John D. Bates to press for the government’s legal reasoning.

There are two documents underlying the decision: one from Attorney General Jeff Sessions and another from then-acting Secretary of Homeland Security Elaine C. Duke formally rescinding DACA, which provides temporary deportation protection to immigrants in the country illegally who came to the U.S. as children. Those documents, Judge Bates said from the bench Wednesday, "don't contain much analysis of the legal issue."

The judge also pushed back during the two-hour proceedings on government arguments of DACA's illegality, particularly that the program is unconstitutional. "There was no recognition of constitutional defects," he said of Sessions' letter.

Wednesday's hearing covered two of the many lawsuits to challenge the decision by President Donald Trump and his administration to end DACA, ostensibly to force congressional action, on the argument that the program launched by the Obama administration overstepped executive branch authority.

Plaintiffs attorney Lindsay Harrison of Jenner & Block argued Wednesday that the Administrative Procedure Act was violated in several ways, including through a lack of notice and comment for the public to weigh in, a lack of consideration to "reasonable alternatives" to avoid the impacts of full repeal, and an insufficient explanation.

That insufficient explanation, Harrison argued, is at least enough to send the case back to DHS for a do-over. Another attorney for the plaintiffs, Joseph M. Sellers of Cohen Milstein Sellers & Toll PLLC, argued Wednesday that the proper remedy in the case is a step beyond the injunctions already blocking DACA's end that would instead require DHS to resume taking new applications for the program's protection, so far granted to some 800,000 people.

The NAACP, the American Federation of Teachers and the AFL-CIO are represented by Joseph M. Sellers, Julie S. Selesnick and Julia A. Horwitz of Cohen Milstein Sellers & Toll PLLC.

The full article can be accessed here.