Trump’s Authority on DACA Under Assault

April 11, 2018

IRLI files brief supporting executive power over immigration policy

WASHINGTON – The Immigration Reform Law Institute (IRLI) waded into the fray yesterday in the Ninth Circuit Court of Appeals, filing a friend-of-the-court brief in a group of cases in which the Regents of the University of California and many other plaintiffs earlier convinced federal district judge William Alsup to block the Trump administration’s phase-out of the Deferred Action for Childhood Arrivals (DACA) program. Judge Alsup’s shock ruling that Trump’s Department of Homeland Security (DHS) could not undo what Obama’s DHS had done is before the Ninth Circuit in the administration’s appeal.

Also before the Ninth Circuit is the Regents’ cross-appeal of another of Judge Alsup’s rulings in the case, this one favoring the administration and dismissing plaintiffs’ claim that the phase-out of DACA is invalid because it never went through a public notice-and-comment process. Judge Alsup had ruled that because both DACA and its phase-out leave individual agents discretion to grant or not grant deferred action to illegal aliens, neither action had to go through notice and comment.

IRLI’s brief supports this ruling while taking issue with its basis. IRLI shows that, in fact, DACA removed discretion from individual agents, and thus DACA is invalid because it did not go through notice and comment. But if DACA is invalid, courts cannot give effect to it, and plaintiffs’ claim was rightly dismissed.

“Though our argument is limited to the cross-appeal,” explained Christopher Hajec, IRLI’s director of litigation, “it has ramifications for the whole case. If DACA is invalid because it did not go through notice and comment, Judge Alsup’s injunction against its phase-out is built on sand. The Ninth Circuit should refuse to reinstate an earlier, invalid rule, as it has refused to do in other cases. But if DACA isn’t reinstated, plaintiffs can achieve nothing by this lawsuit, and all of their claims should be dismissed for failure to state a claim entitling them to relief.”

“Once again, the open-borders left, in its fanatical zeal to block Trump, has given the courts a brain-twister of illogic,” commented Dale L. Wilcox, IRLI’s executive director and general counsel. “This time, it’s a lawsuit claiming that Trump, as president, has no power to reverse a policy a prior president, according to them, had the power to put in place. But they have also given us a lawsuit where even if plaintiffs win, they lose,” Wilcox added. “We look forward to a ruling by either the Ninth Circuit or the Supreme Court putting an end to the madness, and upholding the power of the President of the United States to enforce the law – even if a previous president refused to do so.”

The case is Regents v. DHS, No. 18-15068 (9th Cir. 2018).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]