The NCSL Blog


By Lisa Soronen

Just a few days before the U.S. Supreme Court may decide whether to review a temporary nationwide injunction issued by a federal court in California requiring the Trump administration to maintain much of the Deferred Action for Childhood Arrivals (DACA) program, a federal district court in New York issued a similar temporary nationwide injunction.

LUCY NICHOLSON / REUTERS DACA recipients and their supporters call for renewal of the program outside Disneyland in Anaheim, California, on Jan. 22, 2018.The courts’ reasoning in both decisions is similar. Both courts were clear the Trump administration may “indisputably … end the DACA program.” But it must offer “legally adequate reasons” for doing so. New York and 15 other states brought the case decided by the New York court.   

DACA was established through a Department of Homeland Security (DHS) memorandum during the Obama presidency. The program allowed undocumented persons who arrived in the U.S. before age 16 and have lived here since June 15, 2007, to stay, work, and go to school without facing the risk of deportation for two years with renewals available.

DHS rescinded DACA in September 2017 after receiving a letter from the attorney general stating the program was unconstitutional and “has the same legal and constitutional defects that the courts recognized as to DAPA.”

The Deferred Action for Parents of Americans (DAPA) program would have granted deferred action to certain parents of U.S. citizens and lawful permanent residents. The federal Administrative Procedures Act (APA) prevents federal agencies from taking actions which are arbitrary, capricious, and an abuse of discretion.

In 2015,  the 5th U.S. Circuit Court of Appeals concluded DAPA likely was arbitrary and capricious in violation of the APA because it violated the Immigration and Nationality Act (INA). In 2016 the Supreme Court affirmed the 5th Circuit decision 4-4. 

The New York federal district court concluded the decision to rescind DACA because it was unlawful and unconstitutional was arbitrary and capricious in violation of the APA.

According to the court, “DACA is not unconstitutional simply because it was implemented by unilateral, executive action without express congressional authorization. The Executive Branch has wide discretion not to initiate or pursue specific enforcement actions.”

While the 5th Circuit considered DAPA unlawful because the INA prescribes the exclusive means by which aliens may obtain “lawful immigration classification from their children's immigration status,” DACA recipients would not be receiving an immigration classification through their children.

The district court also pointed out that if the acting DHS secretary really believed DACA was unconstitutional she should have ended it immediately. Instead she “directed her subordinates to begin a phased ‘wind-down of the program,’ under which DHS would continue to renew DACA applications that were set to expire in the next six months and would honor existing DACA benefits until they expired.”

The injunction in this case has the same scope as the injunction issued by the California court. It does not apply to those who have not previously applied to receive DACA (even if they were eligible), and DACA recipients may no longer leave the U.S. and be automatically “paroled” back into the country. 

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial matters.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.