This week, the Immigration Reform Law Institute (IRLI) filed an appellate friend-of-the-court brief in NAACP v. Trump, in which the federal government is appealing a decision by District of Columbia federal district judge John Bates. Judge Bates had struck down last year’s move by the Department of Homeland Security (DHS) to rescind the Deferred Action for Childhood Arrivals (DACA) program.

Judge Bates had held that DHS failed to explain its decision to rescind the program in enough detail, and thus that the rescission was void as arbitrary and capricious. What IRLI argues in its brief is that, even if the rescission were invalid, the courts, including the DC Circuit Court of Appeals hearing this appeal, have an obligation to determine whether DACA is lawful in the first place. If DACA is unlawful, voiding its rescission cannot revive DACA, but would revive the last lawful regulatory state of affairs – the status quo pre-DACA. Since that result would not help the plaintiffs at all, they lose even if they “win.” Thus, their claims are not redressable in court, and thus they lack standing, and the courts lack jurisdiction.

IRLI goes on to explain why DACA is unlawful: far from being authorized by the Immigration and Nationality Act (INA), DACA is a programmatic refusal by DHS to enforce the INA against a class of aliens chosen by itself, after Congress repeatedly refused to grant them legal presence. Also, DACA is a hard-and-fast rule, leaving no meaningful discretion to agents about whether to grant deferred action, and thus should have gone through the public notice-and-comment process, but never did.

“In these rescission decisions that have been popping up around the country, the issue of whether DACA is lawful in the first place is too-often avoided,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Judge Bates carefully avoided it in this case. But the fact is, federal courts have an obligation to assure themselves of their jurisdiction. As we explain in our brief, to do that in this case, the courts have to decide whether DACA is lawful. It’s long past time for this illegal program to be ended, and the issue returned to Congress, and this brief provides a way for that to be done more quickly than would otherwise be the case.”

The case is NAACP v. Trump, No. 18-5243 (DC Circuit).

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