State’s attorneys among those asking Supreme Court to toss president’s decision on DACA

President Donald Trump's 2017 decision to end the Deferred Action for Childhood Arrivals program must be thrown out, according to briefs filed with the U.S. Supreme Court on Friday by attorneys representing the interests of adults who were brought to the U.S. illegally as children.

"Before the government can terminate DACA, the public deserves -- and the law requires -- that the government explain its decision clearly and truthfully," said Theodore B. Olson, a partner with Gibson, Dunn & Crutcher in Washington, D.C., who is serving as counsel for those defending the program instituted by President Barack Obama. "Instead, the government claims that DACA is unlawful, even though it is consistent with 70 years of similar deferred action immigration policies carried out by presidential administrations of both political parties," Olson said.

The high court is set to hear oral arguments in multiple consolidated cases on Nov. 12 in U.S. Department of Homeland Security v. Regents of the University of California, 18-587 (U.S. Sup. Ct., cert. granted June 28, 2019).

The court is taking on two questions: whether the president's decision can be challenged, and if so, was it illegal?

Among those joining Olson's brief were fellow Gibson Dunn partner Theodore J. Boutrous Jr. and UC Berkeley School of Law Dean Erwin Chemerinsky.

They note three district courts have ruled neither the Administrative Procedures Act nor the Immigration and Nationality Act bar review of Trump's move. The procedures act allows for only a "narrow exception for decisions 'committed to agency discretion by law.'" Lower courts have blocked enforcement of Trump's new policy pending the outcome of the case. Instead, Trump's decision must be barred as "arbitrary and capricious" under the procedures act, they wrote.

"The APA mandates that those who 'suffe[r] legal wrong because of agency action' are 'entitled to judicial review,'" their brief states. "Because agencies are 'especially' likely to disregard their legal obligations 'when [violations] have no consequence,' the APA establishes a 'strong presumption favoring judicial review of administrative action,' Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.., 139 S. Ct. 361, 370 (2018)."

California Attorney General Xavier Becerra made similar arguments in his own brief, also submitted Friday. His brief also homed in on the argument that while Trump is free to end DACA if he follows the correct procedures, his current bid to do so fails because it relies on the legally unsound theory that DACA itself is illegal.

"No court has held that DACA could not be rescinded as an exercise of executive branch discretion," Becerra's team wrote. "On the contrary, the courts below have recognized and highlighted the executive's wide discretion in setting policies regarding immigration enforcement. So far, however, petitioners have chosen to stand by their original decision, which is based not on policy grounds but on the assertion that DACA is unlawful."

Trump based his decision on the premise that his predecessor, President Obama, created DACA "without proper statutory authority." Under this rationale, the Department of Homeland Security has a duty to stop enforcing an illegal policy, U.S. government attorneys have argued.

"At best, DACA is legally questionable," wrote U.S. Solicitor General Noel J. Francisco in a brief submitted to the court in August. "At worst, it is illegal."

DACA currently stays deportation for about 700,000 adults who were brought to the United States without legal permission before the age of 16 and have met a series of other requirements.