Last week, the City of San Jose, California, filed a lawsuit against President Trump and his acting secretary of homeland security, in an attempt to stop the Trump Administration from rescinding President Obama’s illegal executive amnesty known as “Deferred Action for Childhood Arrivals” (or “DACA”). The case joins four similar lawsuits filed by the Board of Regents of the University of California, by the States of California, Minnesota, and Maine, by Santa Clara County, and by six DACA recipients living in California.
In September, President Trump announced that the illegal DACA amnesty would be rescinded; but any of the more than 886,000 existing amnesty recipients whose deferred action status ended before March 2018 could seek a renewal. Now, this salvo of lawsuits seeks to preserve the DACA amnesty indefinitely.
The lawsuits are long on political diatribe and short on legal analysis. They make the ridiculous claim that the President cannot unilaterally reverse the DACA policy memorandum issued by President Obama’s DHS Secretary Janet Napolitano – a directive that did not even rise to the level of an executive order. Instead, the plaintiffs claim, DHS must go through the formal process of notice and comment that is necessary to change a federal regulation (or “rule”) under the Administrative Procedure Act.
This is a ridiculous argument, because the Fifth Circuit of the U.S. Court of Appeals has already ruled that the Obama Administration violated this very federal law when it created the DAPA amnesty (which was an extension of the DACA amnesty). The Fifth Circuit came to this conclusion in Texas v. United States, a case that resulted in an injunction halting the second amnesty. In other words, the plaintiffs are claiming that even though President Obama did not jump over the necessary procedural hurdles to create DACA (which makes it null and void), President Trump still has to jump over those hurdles in order to end it.
On top of that, DACA would still be illegal even if President Obama had followed those administrative procedures. A federal law enacted by Congress in 1996 – found at 8 USC 1225(b)(2) – requires that any alien an ICE officer determines to be inadmissible “shall” be placed in removal proceedings. DACA orders ICE agents to break this law. In 2012, in the case of Crane v. Napolitano, I represented ten ICE agents who sued the Obama Administration to stop DACA. The federal district court in the Northern District of Texas held that we were likely to succeed on this claim.
The current lawsuits also advance an even feebler claim – that President Trump is discriminating against Latinos (based on their national origin) by rescinding DACA, in violation of the Fifth Amendment. Never mind that his executive action ending DACA makes no distinction whatsoever based on the ethnicity or national origin of any DACA recipient. By this skewed logic, all enforcement of our nation’s immigration laws would be discriminatory, since the majority of illegal aliens are of Latino ethnicity.
On their face, the latest lawsuits should be dead in the water. Unfortunately, even ridiculous claims can sometimes gain traction before the right district judge or court of appeals. That is why all of these cases were filed in judicial districts under the ultra-liberal U.S. Court of Appeals for the Ninth Circuit.
And even if a court does not have an activist bias, judges can still get it wrong by latching onto a flimsy legal argument.
A recent example of this occurred with a trio of shocking rulings issued by the Kansas Supreme Court in September. The Kansas high court declared, in State v. Ramiro Garcia, that Kansas could not prosecute for identity theft an illegal alien using someone else’s social security number to work in the State. The court’s decision was based on the dubious argument that a federal statute regarding the I-9 employment authorization form preempts states from using any information contained on that form in state prosecutions. According to the majority opinion: “States are prohibited from using the I-9 and any information contained within the I-9 as the bases for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I-9.”
The chief problem with the Kansas Supreme Court’s decision is that Congress intended no such thing when it enacted the statute in 1986 – and congressional intent is supposed to control in preemption cases.
The two dissenting justices pointed out just how flawed the majority’s decision is. As Justice Biles noted, the Iowa Supreme Court and the Minnesota Court of Appeals reviewed nearly-identical cases and came to the exact opposite conclusion. By going in the opposite direction, the Kansas majority opinion “stretches statutory interpretation past the breaking point and dismisses contrary caselaw.” Justice Stegall also pointed out that, under the faulty logic of the majority opinion, a state would be prevented not only from using the stolen social security number in a state prosecution, but also from using the alien’s name – since that information too appears on the federal I-9 form.
The Kansas Attorney General announced that the State will ask the U.S. Supreme Court to review the cases. If the high court takes up this issue, I have no doubt that it will reverse the decisions of the Kansas court. Unfortunately, in the meantime, these decisions mean that illegal aliens who steal social security numbers and work in Kansas cannot be prosecuted by the State.
These recent developments in Kansas and California are deeply disappointing for anyone who is concerned about restoring the rule of law to immigration. They illustrate clearly that the problem does not lie with Congress at present. There are plenty of good statutes on the books. The greater risk is that the executive branch will fail to enforce the law (as the Obama Administration did) or that the judicial branch will incorrectly interpret the law.
Kris W. Kobach is the elected Secretary of State of Kansas. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the ten ICE agents who sued to stop Obama’s 2012 executive amnesty. In 2017, President Trump named him Vice Chairman of the Presidential Commission on Election Integrity. His website is kriskobach.com.