On September 6, 2017, the attorneys general from fifteen states and the District of Columbia filed a complaint in the Eastern District of New York to challenge DHS’s revocation of the DACA program, referred to as the “DHS Memorandum.” Plaintiffs seek for the court to declare the DHS memo as unlawful; enjoin Defendants from rescinding the DACA program; enjoin Defendants from using information obtained in DACA applications for immigration enforcement actions against applicants, members of the applicant’s family, or actions against the applicant’s employer.
This is an initial complaint filed in the Eastern District of New York seeking declaratory and injunctive relief. The States of New York, Massachusetts, Washington, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia have sued Donald Trump in his official capacity; the Department of Homeland Security; Elaine C. Duke in her official capacity; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; and the United States of America.
Fifth Amendment – Equal Protection Clause
(1) Plaintiffs seek relief under the Equal Protection Clause of the Fifth Amendment.
Plaintiffs allege that the DACA rescission (referred to as “DHS Memorandum”) was motivated by a discriminatory intent, or desire, to harm Mexicans. Because Mexicans are the largest group of DACA recipients, the rescission has a discriminatory impact against this group.
Any government action with discriminatory intent and impact – even if it does not discriminate on its face – deserves judicial scrutiny as a potential violation of the Equal Protection clause. Because Mexicans are a group of individuals classified by national origin, this would likely warrant strict scrutiny. One potential rebuttal cited by Stephen Yale-Loehr and Ilya Somin, law professors at Cornell University and George Mason University, respectively, is that the President’s disparaging comments towards Mexicans are not significantly tied to the rescission of DACA, unlike the disparaging comments towards Muslims and the executive order barring refugees from seven Muslim countries, which Trump referred to as a “Muslim ban.” If there is no discriminatory intent, then the DACA revocation does not violate the Equal Protection clause.
Fifth Amendment – Due Process
(2) Plaintiffs seek relief under the Due Process clause of the Fifth Amendment regarding the potential dissemination of DACA application information for the purposes of immigration enforcement.
Plaintiffs allege that the failure of DHS to prohibit the use of information for immigration enforcement is “fundamentally unfair.” Because immigration enforcement actions are government actions, they are subject to the requirements of due process, which at its core bars the government from acting in a “fundamentally unfair” manner.
At The Hill, Renato Mariotti cites several cases for this argument, including Raley v. Ohio, 360 U.S. 423 (1959) (relying on an agency’s guidance that the Fifth Amendment privilege against incrimination was available in legislative inquiries, and later convicted for refusing to answer questions); Cox v. Louisiana, 379 U.S. 559 (1965) (relying on a police officer’s interpretation of a vague criminal statute, and later convicted for violation of that statute), and United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 (1973). The latter case is the most analogous of the three to the DHS statements that DACA information would not be used for immigration enforcement actions.
In United States v. Pennsylvania Industrial Chemical Corp., Pennsylvania Industrial Chemical Corp. (“PICCO”) was found guilty of emitting pollutants in violation of the Rivers and Harbor Act. However, PICCO alleged that the Army Corps of Engineers had a longstanding administrative construction of the Rivers and Harbor Act that excluded those specific pollutants, and the Corps issued many guidances that reflected this.
The Supreme Court found that PICCO should have been allowed to show whether the Corps “affirmatively misled” PICCO into thinking that the emission of these pollutants was not in violation of the law. PICCO argued that it was not “ignorant of the law, or that the law was impermissibly vague,” rather “that it was affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation.” 411 U.S. at 674 (citations omitted).
Moreover, although the regulations did not, of themselves, purport to create or define the statutory offense in question, see United States v. Mersky, 361 U. S. 431 (1960), it is certainly true that their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution. 411 U.S. at 674.
However, the Court falls short of holding that the reliance on the Corp guidance absolved PICCO of the offense because that is a finding of fact for a lower court to decide, but the Court acknowledged that there were other factors that demonstrated reliance on the Corps guidance was not reasonable, for example the statute on its face bars these pollutants and many lower courts have held that this is a blanket ban with no such exceptions.
Similarly, here, the main question will be whether the reliance on a government statement, the DHS statement that information will not be used for immigration enforcement actions, was reasonable. Like U.S. v. PICCO where the statute states in no uncertain terms that all pollutants are impermissible, the Immigration and Naturalization Act is not ambiguous as to what persons are undocumented. But the original DACA memo was similarly “designed to guide persons as to the meaning and requirements of the statute.” A rebuttal could be that DHS has no business giving such guidance when the enforcement actions are taken by a different agency, U.S. Immigration and Customs Enforcement. But in U.S. v. PICCO, the agency that gave guidance (Army Corps) was not the enforcing agency (DOJ).
Administrative Procedure Act – Substantive, Arbitrary and Capricious
(3) Plaintiffs seek relief under the Administrative Procedure Act (APA) substantively challenging the revocation as arbitrary and capricious.
The APA, 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. Plaintiffs allege that because DHS failed to take any formal steps prior to the rescission to review its merit, the rescission is substantively arbitrary and capricious. In other words, there is no factual basis for rescission because there are no facts to say how circumstances have changed since DACA was implemented.
There is some debate as to whether the change of a position based on political ideology is “arbitrary and capricious.” Shouldn’t weight be given to elections whereby the populous chose to institute a new party into power? The executive branch is inherently political as almost every position could change by the election of the president, and those positions that cannot change are specifically insulated as independent agencies.
For the view that politics should be excluded from agency actions, see Mark Sedenfeld, The Irrelevance of Politics for Arbitrary and Capricious Review, 90 Wash. U. L. Rev. 141 (2012). For an opposing view, see Glen Staszewski, Political Reasons, Deliberative Democracy, and Administrative Law, 97 Iowa L. Rev. 849 (2011-2012).
Administrative Procedure Act – Procedural, Notice-and-Comment Rulemaking
(4) Plaintiffs seek relief under the Administrative Procedure Act procedurally challenging the revocation for not undergoing notice-and-comment rulemaking.
The APA requires “notice-and-comment” rulemaking procedures prior to the promulgation of agency rules. 5 U.S.C. § 553. Plaintiffs argue that the DHS memo was a “rule” that required this type of procedures. Because DHS did not undergo these procedures (publishing a draft rule, receiving public comment, and then publishing a final rule after review of those comments), it is procedurally invalid.
Other scholars have come to the same conclusion as Plaintiffs, see Daniel Hemel’s The Legal Flaw with Ditching DACA at Politico or for both sides, see Sean Illing’s Can these Democratic Attorneys General Save DACA? I Asked Nine Legal Experts at Vox.
However, the original DACA memo did not undergo notice-and-comment rulemaking because DHS asserted it was not, in fact, a “rule.” As I reviewed in my post DHS Revokes DACA, a “policy memo” is not considered a “rule,” and as such need not undergo these procedures. The question raise in this cause of action is whether the DHS memo that rescinded a “policy memo” is a rule in and of itself.
Guidance to agency employees on the use of prosecutorial discretion is appropriate content for a policy memo. Logically speaking, guidance to the effect that prosecutorial discretion should revert back would also be an appropriate policy memo. Plaintiffs would have to show that the DHS memo goes above and beyond the limits of the DACA memo – that is has more regulations on agency action – for this argument to hold water. Otherwise, if the DHS memo is a “rule,” then so if the original DACA memo – and the original DACA memo would have been procedurally invalid.
Regulatory Flexibility Act – Procedural
(5) Plaintiffs seek relief under the Regulatory Flexibility Act alleging that DHS failed to conduct the required study on the economic impact on the DACA rescission.
The Regulatory Flexibility Act (RFA) requires federal agencies to analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for public comment. 5 U.S.C. §§ 603-604. Plaintiffs argue that the rescission of DACA significantly impacts a substantial number of small entities, which includes small businesses, small non-profits, and small government jurisdictions. Because DHS did not issue a regulatory flexibility analysis, the DHS memo is invalid.