Deferred Action for Childhood Arrivals, or DACA, is an immigration policy that was enacted by President Obama’s executive order in 2012. It allows undocumented immigrants who were brought to the United States as children and have lived in the US for more than four years to avoid deportation and obtain a work permit. The deferral on deportation is valid for a period of two years and is renewable.
The Trump Administration reversed the policy in 2017. The National Association for the Advancement of Colored People, or NAACP, along with other immigration advocates, filed a lawsuit asking the court to review the Trump Administration’s reversal of the policy. The District Court ruled that the reversal was unlawful, and the U.S. Court of Appeals is now hearing the matter for the D.C. Circuit.
Shortly after the September 2017 DACA rescission, the NAACP and other immigration advocates filed the lawsuit in the U.S. District Court alleging that the reversal of DACA was unlawful. The federal government, however, argued that the rescission of DACA was a policy matter and did not even fall under the court’s jurisdiction. Judge Bates issued a ruling agreeing with the NAACP’s assessment, but in an effort to provide the Trump Administration the opportunity to prove that the reversal was a matter of policy, as opposed to a matter of law, Bates granted a stay of 90 days.
The distinction between a matter of law and a matter of policy is really what this case boils down to. DACA was originally reversed because of a memo sent from then-Attorney General Jeff Sessions to then-Secretary of Homeland Security Elaine Duke. In that memo, Jeff Sessions stated that DACA was unlawful. This is where things get complicated. The judicial branch has jurisdiction over matters of law, while the executive branch has jurisdiction over matters of policy. Judge Bates ruled that the reversal of DACA was unlawful because it was based solely on Attorney Sessions’ interpretation of law, not policy. So, the 90-day stay was granted in order to provide the government the opportunity to explain how their decision to repeal DACA was based on policy decisions as opposed to a simple interpretation of law.
The Government did issue a new memorandum in that 90-day period in an effort to prove their decision was policy-based, but after review, Judge Bates issued his final decision, which stated: “…while the memo offers several additional ‘policy’ grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are ‘insufficiently independent from the agency’s evaluation of DACA’s legality’ to…support the agency’s decision.”
U.S. Court of Appeals for the D.C. Circuit
The Trump Administration appealed Judge Bates’ ruling, and arguments were made this month before the three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. The Administration, fielding questions from the panel, continued with their argument that the decision to repeal DACA is not subject to judicial review, as it concerns matters of policy, which fall under the executive branch’s jurisdiction.
The panel also grilled Lindsay Harris, an attorney with Jenner & Block who represents the Plaintiffs in this matter. Ms. Harris argued that the government’s numerous memos on this matter did little to address policy concerns and were still based on legal conclusions. Ms. Harris also raised the argument that because the government failed to raise any policy concerns in the initial case before the District Court, the Appellate Court could not even consider them.