On November 18, 2019, CLRE, along with the CUNY Law School Office of Student Affairs and co-sponsors, LALSA, the Sorensen Center, and others held a panel discussion de-briefing the United States Supreme Court’s November 12, 2019, oral argument in Department of Homeland Security v. Regents of the University of California, the case challenging the Trump Administration’s decision to rescind Deferred Action for Childhood Arrivals (DACA).
Watch the panel here
The panel, moderated by CLRE fellow Joanna Lopez, included CUNY Law Student Carlos Vargas, a named plaintiff in the DACA lawsuit, who attended the oral argument. Mr. Vargas noted his concern about the implications of the DACA rescission but emphasized that he was heartened that the case is important enough and that DACA has enough public and legal support to go before the nation’s highest court.
Indeed, strong public support for Dreamers, for DACA, and for creating humane, reasonable immigration reform that includes a path to citizenship for Dreamers and others, accentuates the importance of this case and its outcomes. As NPR noted last year, “[t]wo-thirds of Americans say people brought to the United States as children and now residing in the country illegally should be granted legal status.”
During the panel, Professor Janet Calvo provided detailed background about DACA. She explained that contrary to the administration’s main argument, DACA is lawful. Indeed, it is part of a longstanding lawful process of prioritizing enforcement of immigration laws and was used to defer the deportation of Beatles star John Lennon. Professor Calvo also explained the stringent eligibility requirements for DACA and why it makes no sense to rescind the program for Dreamers, who arrived in the United States as children, are law-abiding, tax-paying people, many of whom have graduated high school and college, and are American in every way except for their documentation because of congressional failures to enact sensible immigration reform.
Professor and CLRE Director Natalie Gomez-Velez explained the administrative law bases for the challenge to DACA rescission. She noted that while the administration has the power to change or rescind policies such as DACA, the Administrative Procedure Act requires that it explain its actions, including why they are reasonable, based on the law, and not arbitrary and capricious. Such an explanation is particularly important when a policy has engendered significant reliance interests. Challengers to the DACA rescission claim that the administration has failed this standard. By claiming that rescission was required because DACA is unlawful, the Trump administration has not only made an erroneous statement of the law, it has also failed to give a rational reason for rescinding DACA. This failure flies in the face of longstanding principles of administrative law and governance – that agencies should provide reasoned explanations for their actions to show that they have given matters that significantly affect the public close consideration and so that they may be held accountable for their decisions.
Indeed, Supreme Court Justice Sonia Sotomayor noted during the oral argument that there are “a whole lot of reliance interests that weren’t looked at, including the [] current President telling DACA-eligible people that they were safe under him and that he would find a way to keep them here. And so he hasn’t and, instead, he’s done this.” She asked “where is all of this really considered and weighed? And where is the political decision made clearly? That this is not about the law; this is about our choice to destroy lives.”
Emphasizing the real-life implications of the case, CLRE fellows Leticia Escobar and Cesar Ruiz summarized several amicus briefs documenting the significant negative impacts a DACA rescission would have, not only on Dreamers but on a range of businesses and institutions across the United States. They also discussed evidence of anti-Latinx animus as motivating the decision to rescind DACA that was presented in amicus briefs in the case.
CUNY Law Professor and Immigration Law practitioner Danny Alicea discussed strategies and challenges in representing those affected by the DACA rescission. He identified a network of attorneys with key immigration expertise and noted the challenge of dealing with federal immigration policy and practice that is continually changing. He stressed the need to help guard against fraud. Finally, he acknowledged the significant loss of trust in not only the government, but also lawyers and the legal profession, as a result of this administration’s treatment of immigration in general and DACA rescission in particular.
The panel discussion included questions from the audience that ranged from technical legal issues to the practical implications of DACA rescission. While many were of the view that the Court is likely to rule against the challengers and lift the current injunction related to the administrative law questions, it was also noted that there were still matters to be decided about the case in the courts below.
Despite dire predictions for the case’s outcome, the panel discussion ended on a positive note, with strategies to continue in the struggle to support positive immigration reform and to fight against discriminatory policies based on animus.
