Friday, September 08, 2017

Similarities and Differences Between the DACA Lawsuit and the Travel Ban Litigation

by Michael Dorf

**Updated: Video available here**

At noon today I'll be speaking on a panel at Cornell Law School on Immigration and Executive Power. My fellow panelists are U Chicago Prof Eric Posner and George Mason Prof Ilya Somin, with my colleague Steve Yale-Loehr serving as moderator. The panel was planned months ago. During our planning conversations, the four of us envisioned it focusing chiefly on President Trump's Travel Ban, with other immigration issues serving as context for a broader discussion about executive power. Then came the announcement earlier this week that the administration will cancel DACA in six months (unless President Trump "revisits" the issue following congressional failure to act). Given the timeliness of the DACA issue, it will also feature prominently in our discussion today.

I intend to raise the lawsuit filed on Wednesday by the attorneys general of fifteen states and the District of Columbia, which alleges that the president's termination of DACA is unlawful. The lawsuit contends that terminating DACA violates: equal protection (because it intentionally discriminates against Mexicans); due process (by breaking a promise to DACA recipients that their information would not be used against them); the Administrative Procedure Act (as arbitrary and capricious); the Administrative Procedure Act again (for failure to utilize notice-and-comment rulemaking); and the Regulatory Flexibility Act (for failure to undertake required pre-adoption analyses). Here I'll offer a thought on the equal protection claim.

On its face, the equal protection objection to DACA rescission looks similar to the equal protection, free exercise, and establishment challenges that have been made to the Travel Ban. In the latter, plaintiffs argue that a facially neutral policy--excluding nationals of certain countries based on asserted national security justifications--has a disparate impact based on religion, and that this disparate impact was intentional; the plaintiffs' chief evidence of intentionality consists of statements by Trump both before and after he became president exhibiting anti-Muslim bias. Likewise, in the state AGs' DACA lawsuit, plaintiffs argue that a facially neutral policy--canceling DACA based on the claim that it exceeded executive power and rewarded illegal entry into the country--has a disparate impact on Mexicans, and that this disparate impact was intentional.

The Travel Ban lawsuits largely succeeded in the lower courts, although their fate remains to be decided (if the cases are not dismissed as moot) in the Supreme Court. Given the similarities between the challenges, will the equal protection claim in the DACA case stand or fall based on the resolution of the Travel Ban case? Not necessarily. In one respect, the DACA case is stronger; in two respects, however, it is weaker.

The DACA lawsuit is stronger because it concerns people who are already in the United States. As reflected in the Supreme Court's interim order in June, people outside the U.S. who lack ties to people  or organizations inside the U.S. are less likely to find protection in the courts--either because they will lack standing or because the Constitution and laws will be construed as not reaching them. Although undocumented immigrants in the U.S. do not have all of the same legal rights as citizens and permanent residents, they do enjoy access to courts and basic due process. Thus, the plenary power doctrine and its variations pose a greater obstacle to the Travel Ban plaintiffs than to the DACA plaintiffs.

At the same time, however, the discrimination claim is less clear-cut for the DACA plaintiffs than for the Travel Ban plaintiffs in two ways.

First, the DACA complaint alleges that President Trump means to rescind DACA based on animus against Mexicans, but nationality-based discrimination in immigration law has never been held unconstitutional, and, at least in some contexts, it shouldn't be. For example, during wartime, the government ought to be able to exclude enemy aliens. More broadly, there is a difference between nationality--the country in which one is a citizen or subject--and national origin--which is similar to race or ethnicity. Country-based immigration quotas in the U.S. were long based on what we would now rightly regard as illicit racial and ethnic stereotypes. But nationality distinctions in immigration law need not be based in racial or ethnic stereotypes.

The state AGs who filed the DACA complaint appear to understand the distinction I have just laid out. They say that President Trump has displayed animus towards people with "Mexican roots," and the equal protection claim cites discrimination on the basis of "national origin" rather than "nationality." Nonetheless, we can expect that when the president files his answer he will allege that rescinding DACA aims at controlling the flow of people from Mexico based on nationality rather than based on national origin. The answer should not ultimately be sufficient because Trump's bigotry is about national origin (just ask Judge Curiel), but this answer is at least available in a way that no precise parallel is available with respect to Trump's anti-Muslim statements in the Travel Ban litigation.

Second, in the Travel Ban litigation the disparate impact is easy to assess because there are numerous people--most of the people in the world--who are not subject to the Travel Ban. Thus, the plaintiffs can show how the people harmed by the travel ban are mostly Muslim while the people not harmed by it are mostly not Muslim. By contrast, there is no obvious comparator group for DACA rescission. Trump didn't announce his intention to rescind DACA for one group that is mostly Mexican but retain it for another that is mostly non-Mexican; Trump announced the intention to rescind DACA for everyone. Accordingly, one might think that the case looks like Palmer v. Thompson--in which the SCOTUS held that Jackson, Mississippi did not violate equal protection when it closed all of the municipal swimming pools to avoid desegregation, even though it was motivated by racial motives.

I think that ultimately the Palmer analogy fails, however. Suppose that in Palmer it had been shown that African Americans disproportionately swam in public pools while whites disproportionately swam in private pools. Then--at least applying the standards set forth in subsequent cases involving race-neutral criteria employed for an illicit motive--the plaintiffs in Palmer would have won. Put differently, where an action has a disparate impact relative to the status quo ante and is taken because (rather than in spite) of that impact, it violates equal protection, even if it nominally applies to everyone.

Bottom Line: There are differences between the DACA litigation and the Travel Ban litigation but ultimately the case against DACA rescission ought to succeed despite those differences.


David Ricardo said...

If President Obama was acting outside his authority in putting DACA in place, then certainly a court would rule that revoking it was not only allowed but required by a President who agrees with that position. Alternatively, if implementing DACA was within a President's discretionary authority then it would seem difficult for a court to rule that revoking it was not within a President's discretionary authority.

At best the issue may be similar to the "Gag Rue" on abortion that Republican Presidents implement and Democratic Presidents remove on a regular basis. Add to all of this the fact that courts are highly reluctant to become involved in a President's law enforcement and national defense actions and it seems like a doomed hope that the legal system would rule in favor of DACA.

The revocation of DACA is extremely mean and cruel to the individuals and their families. It is destructive to the nation and the economy. It is unnecessary and counter productive. It is not even good politics and it is terrible national policy. But none of that means that it is not allowed by law.

Mr. Dorf certainly gets an A for effort here, but one suspects that deep down even he does not believe a suit on behalf of DACA will succeed on its merits. In fact it seems like the purpose of the suit is more to effect a judicially created delay in removing DACA by temporary injunction rather than actually getting a judicial enforcement that maintains DACA.

egarber said...

A few things:

1. Will there be video of the panel available at some point?

2. Just to help me understand, as a 14th Amendment matter, only *intentional* disparate impact is a potential violation, correct? But in the context of statutory law (like the Civil Rights Act), disparate impact on its own, even if unintentional, can be redressed?

3. Regarding this lawsuit, isn't there a meaningful difference between invoking an executive order that potentially discriminates via animus, vs rolling back something? Seems harder to equate the latter with affirmative encroachment, though I'm sure it's possible to think through harmful hypotheticals.

Joe said...

Ian Millhiser thinks the best hope regarding DACA litigation is to temper the bad:

Michael C. Dorf said...

DR: No, that's just wrong. In general, if A is within a president's discretion, then so is not-A, but case law makes clear that otherwise permissible actions undertaken for certain illicit purposes are unconstitutional. I'm not making a prediction about what the courts will ultimately do; I'm explaining what the principles of prior cases entail in this case.

Eric: 1) I think so. I'll Tweet out the URL if/when it's available. 2) Correct, although the statutory disparate impact limit permits defendants to escape liability (in the employment discrimination context) by showing that there was good reason for the policy. 3) I don't think so, for the reasons above. The key is still unequal treatment, whether it's positive or negative.

Michael C. Dorf said...

Actually, livestreaming:

Asher Steinberg said...

That conclusion came very fast; even if Palmer were understood as you say, the plaintiffs need to win on intent, which I don't think is as easy as you obviously do, or can be achieved solely or largely by pointing to a collection of things Trump has said about Mexicans, with the inference being that animus motivates anything he does that has a disparate impact on them (which could include a vast range of policies). I think Trump's purpose is political. Having a large base of anti-immigration supporters, he feels he has to do things to appeal to them. If he acted with the intent of appealing to racists qua racists, we should attribute animus to him, whatever his own personal racism. But here I see more of an appeal to anti-immigration voters generally. People with less charitable views will reasonably see the matter in a darker light, but I think the courts are required to take a favorable view in a case of ambiguous motives.

As to Palmer, though, you think Palmer came out the way it did because of a lack of evidence regarding racial differentials in public/private pool use? Wasn't that almost a given? And even if it weren't, so long as one knew that the public pools wouldn't be replaced by a largely integrated and accessible private-pool offering - which almost had to be true, or what was the point of closing the public pool? - the Court knew of a disparate impact. I don't think that Palmer can be read as consistent with "the subsequent cases involving race-neutral criteria;" it's just wrong, or implicitly overruled by them.

Michael Livingston said...

In normal times, I would think a suit against the DACA suspension would have no chance, but there's nothing normal nowadays . ..

greg rubin said...

I was and remain convinced that DACA was within the Presidents discretionary enforcement power and like any such power a new President can change the priorities of enforcement. I just don't see an issue here.

To me the more compelling argument is that these kids have provided extensive information about who they are, contact information, work history, etc to the government and have relied upon the promises made by the government in buying houses, planning futures, accepting jobs, attending schools etc. To rip all of that away raises far more powerful arguments to me. Just as a start detrimental reliance contract claims for instance, the kid who took out a load (there are no government backed student loans for DACA recipients) to pay for college, who now won't be allowed to finish. That could be hundreds of thousands of dollars wasted due to reliance on government statements.

Michael C. Dorf said...

Thanks for all the comments. Asher, I'll have a post tomorrow inspired by your query re Palmer.