They Still Have Their Dream: Why Kris Kobach's Vitriol-Based Lawsuit Will Fail

"[O]ne cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA.  They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself.  This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion.  We think this is a losing proposition.  In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials as an initial matter, must decide whether it makes sense to pursue removal at all.”   Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.   Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;  inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971).  The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make do.  It has served us pretty well so far." - Gary Endelman & Cyrus D. Mehta, Aug. 27, 2012.