Immigration Law

Expert: Challenging Trump's DACA Rescission a 'Tough Battle' in Courts

Sean Illing, Vox, Sept. 8, 2017 - Stephen Yale-Loehr, law professor, Cornell University: "I think legal challenges to the DACA program’s rescission face a tough battle in the courts, for several reasons. First, courts are generally more deferential to immigration actions by the executive branch than in other areas of the law because immigration touches on sovereignty and national security.

Second, courts generally don’t review challenges to how the government exercises prosecutorial discretion. Third, while the lawsuits may charge that terminating the DACA program is motivated by racial animus against Mexicans, the connection between discriminatory statements made by the Trump administration and the DACA program’s rescission is not as close as in the travel ban case now pending before the Supreme Court.

However, one court struck down the Obama administration’s effort to create a similar deferred action program for undocumented parents of US children, ruling that the Obama administration failed to follow the notice and comment requirements of the Administrative Procedure Act (APA). Plaintiffs are sure to argue that the APA also applies to terminating the DACA program, and that the Trump administration failed to do that here. In essence, they will claim that what is sauce for the goose is sauce for the gander. It will be interesting to see how a court rules on that issue."