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.