Attorney General Jeff Sessions said Tuesday that the administration’s fear of lawsuits helped spur the decision to end DACA, a program allowing certain undocumented immigrations who came to the United States as youths to live here without fear of deportation.
But that explanation, some analysts said, is suspect because several state attorneys general, including in New York, Washington and Massachusetts, have said they plan to file lawsuits to save the program in response to Sessions’s announcement.
In an appearance in a seventh-floor conference room at the Justice Department, Sessions said “imminent litigation” from the state of Texas and others prompted a review of the so-called Deferred Action for Childhood Arrivals program, commonly referred to as DACA. After that review, officials concluded that the program was “an unconstitutional exercise of authority by the executive branch,” Sessions said.
President Trump and those in his administration sought to cast the issue as one of separation of powers. Trump issued a statement saying President Barack Obama made “an end-run around Congress” that violated “the core tenets that sustain our Republic.”
Some legal analysts said the move rightly put the program in the hands of legislators.
“The decision to rescind the program returns this controversy to where it should have remained: in Congress,” said Jonathan Turley, a George Washington University law professor who has testified before Congress about his qualms with how the DACA program was implemented. “Congress failed to pass DACA and other measures. President Obama then announced in the State of the Union that he would circumvent Congress.”
But other legal analysts said the announcement seemed to mask the administration’s true intent of wanting to deport anyone — including children — who came to the United States illegally.
“If the concern was, ‘We needed to act or the states were going to act,’ there was no attempt made to stop the states from acting, and the federal government holds significant leverage over the state of Texas right now,” said Leon Fresco, a former adviser to Sen. Charles E. Schumer (D-N.Y.) on immigration law and policy who now works as a lawyer in private practice.
Although Texas and several other states had threatened to sue the administration if it did not end DACA by Tuesday, the program, enacted in 2012, had thus far passed legal muster. A judge in 2013 dismissed a lawsuit brought by immigration agents against the program, and Texas had not sued over DACA itself.
The state had successfully convinced a federal judge to block a similar measure, known as Deferred Action for Parents of Americans, or DAPA, which was intended to grant a reprieve from deportation for illegal immigrants whose children are either U.S. citizens or lawful permanent residents.
That initiative also had come with an expansion of DACA, but none of the legal wrangling directly impacted the original DACA program.
Acting homeland security secretary Elaine Duke said in a statement that officials felt they faced essentially two choices: “wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation; or allow the judiciary to potentially shut the program down completely and immediately.”
The administration said it would no longer accept new applications for DACA, which has provided renewable two-year work permits to nearly 800,000 people. The agency said those enrolled in DACA will be able to continue working until their permits expire; those whose permits expire by March 5, 2018, will be permitted to apply for two-year renewals as long as they do so by Oct. 5.
The Justice Department theoretically could have defended DACA. Some analysts noted that the department was not shy in touting Trump’s broad powers on immigration when it came to defending his controversial travel ban.
Sessions, however, has long opposed efforts to award any sort of amnesty to those in the country illegally. He previously had questioned whether the DACA program could pass legal muster.
But by publicly announcing the end of DACA, the Justice Department might have made a strategic error. The department could have let Texas sue and offered no defense or a weak one. If the suit were to have led to a federal judge blocking DACA, it might have stymied other states’ efforts to get involved and save it.
“Sessions has opened the door for true DACA advocates to affirmatively litigate their case on many fronts, so if the attorney general wanted to end DACA as expeditiously as he says, this is a curious legal strategy,” said Molly Moran, a former Justice Department official in the Obama administration.
Analysts said it was unclear whether a challenge to DACA would have been likely to succeed. Supporters of DACA have argued that the program is akin to the government exercising prosecutorial discretion. The executive branch, they say, is essentially deciding who to target for deportation and putting a low priority on those who came to the country as children.
“I honestly think it would be a close issue,” George Washington University’s Turley said of whether a challenge to DACA would be successful.
But defending DACA, Turley said, would be similarly difficult, potentially forcing supporters to argue that Trump lacks the power to revoke DACA that Obama had to implement it.
David Nakamura and Sari Horwitz contributed to this report.