Fifteen states with leftist attorneys general sued President Donald Trump in federal court on Wednesday over his decision to end President Barack Obama’s controversial DACA program.
Obama created DACA—the Deferred Action for Childhood Arrivals—in 2012 by executive fiat, granting indefinite legal status to a category of illegal aliens. Obama later increased to 4.5 million the number of covered illegal aliens when he expanded DACA with the similarly named DAPA.
Half of the states in the country sued the Obama administration and secured a nationwide legal victory when the U.S. Court of Appeals for the Fifth Circuit held that DAPA was illegal.
DACA and DAPA are based on the same concept, just using different criteria to cover a different number of people. It is a difference in degree, not in kind. Legal reasoning that overturns one should also overturn the other.
As Breitbart News reported in detail, both programs run into three legal problems. First, this policy was made without going through the notice-and-comment process required by the Administrative Procedure Act (APA). Second, even if they had, they would still be inconsistent with Congress’s Immigration and Nationality Act, which trumps any executive order. And third, it violates the Constitution’s Take Care Clause.
Nonetheless, New York is now leading a coalition of 15 states suing President Trump for ending President Obama’s program, filing suit in the U.S. District Court for the Eastern District of New York.
New York alleged in its civil complaint initiating the lawsuit that the president’s decision is “to punish and disparage people with Mexican roots.” Page Six of the complaint adds that coverage under DACA allows an illegal alien to obtain health coverage, but that without it, the foreigners will stay in the United States without health insurance.
Virginia Attorney General Mark Herring aligned in this lawsuit with the liberal wing of the Democratic Party—an interesting decision as he squares off against Republican Ed Gillespie to be the next governor of Virginia—suing President Trump for affirming that the Constitution designates Congress, not the president, as the branch of government that makes immigration law. Herring argued that it is wrong to transfer 12,000 jobs currently held by DACA illegal aliens to Virginia citizens, and further argues that illegal aliens here under DACA should be able to pursue four-year degrees at Virginia colleges.
The lawsuit asserts five claims. It claims two Fifth Amendment violations: that the government is violating the amendment’s equal-protection guarantee by discriminating on the basis of race, saying that the decision is anti-Mexican, and also that the decision violates the Due Process Clause because the result “is fundamentally unfair.”
The states also claim that it is the Trump administration, rather than the Obama administration, that is violating the APA. First, the suit calls the decision to end DACA arbitrary, capricious, and otherwise contrary to law. Second, it says that although DACA was created without the APA’s notice-and-comment process, that the current administration must nonetheless go through that lengthy process before it can legally halt an illegal program.
Finally, the states claim that this decision violates the Regulatory Flexibility Act because it does not examine the potential impact of ending DACA.
Regardless of the decision in the federal trial court, the losing party can take the case to the U.S. Court of Appeals for the Second Circuit.
The case is New York v. Trump, No. 1:17-cv-5228 in the Eastern District of New York.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.