On September 8, 2017, the University of California system and its President, Janet Napolitano, filed a complaint in the Northern District of California to challenge the DHS revocation of DACA, (referred to as the “Rescission”). If the name Janet Napolitano sounds familiar from previous DACA coverage, it is because she was the Secretary of DHS who authorized the original DACA memo. Now, as President of the University of California, Napolitano is asserting standing to sue in her official capacity.
The main question here is whether the University has standing to sue over the DHS memo. The key elements of standing are that the plaintiff must have a direct injury, the injury is redressable in court, and the defendant’s action caused the injury.
The complaint asserts two substantially similar claims as New York v. Trump, but provides a unique due process argument – claiming that the University has a protected property interest in the resources that it spent on DACA recipients that DHS stripped away with the DACA revocation. This due process argument will likely be the heart of the University’s standing. This is the injury that the University suffered that DHS caused.
This is an initial complaint filed in the Northern District of California seeking declaratory and injunctive relief. The Regents of the University of California and its President, Janet Napolitano in her official capacity sued the Department of Homeland Security; Elaine C. Duke in her official capacity as its Secretary.
(1) Plaintiffs seek relief under the Administrative Procedure Act (APA) substantively challenging the revocation as arbitrary and capricious.
(2) Plaintiffs seek relief under the Administrative Procedure Act procedurally challenging the revocation for not undergoing notice-and-comment rulemaking.
These two claims are substantially the same as in New York v. Trump. As such, look to the post covering that case for a review of the arguments.
(3) Plaintiffs seek relief under the Due Process Clause of the Fifth Amendment.
While New York v. Trump has a due process argument, the University of California’s argument presents a novel approach. Plaintiffs first argue that it is the protected interests of the University that are being deprived by the DACA rescission. The University “has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation.” See ¶ 69. Further, the University would lose the benefits of these investments if the DACA recipients are unable to complete their education. See ¶ 70. It is the University itself that it deprived of due process when DHS revoked DACA in violation of the Fifth Amendment.
Plaintiffs argue a second due process theory focusing on the deprivation felt by the DACA recipients – rather than the University. In this argument, plaintiffs state that the DACA recipients had a constitutionally-protected interest in the benefits of the DACA program and status conferred. This may not hold water because even though the DACA recipients were given specific benefits from the program, the original 2012 DACA memo specifically stated, “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It will be a tough question as to whether the DACA recipients can claim a constitutionally-protected interest when the program claimed to never provide any “substantive rights.”