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DC Circuit to Consider Trump's Termination of DACA

E. Barrett Prettyman Court House in Washington, D.C. Photo by Diego M. Radzinschi/ALM.

A federal appeals court in Washington is set to hear arguments Friday about the legality of the Trump administration's decision to wind down the Deferred Action for Childhood Arrivals program.

A panel of judges for the U.S. Court of Appeals for the D.C. Circuit will weigh the lawfulness of the September 2017 decision to rescind the Obama-era immigration program, which defers deportation for hundreds of thousands of undocumented immigrants who arrived in the United States as children. U.S. District Judge John Bates of the District of Columbia ruled last year that the rescission was an unlawful violation of the Administrative Procedure Act, calling it “arbitrary and capricious.”

The arguments before the D.C. Circuit come as the U.S. Supreme Court appears unlikely to consider the issue this year. Solicitor General Noel Francisco had asked the justices in November to take up the issue, filing three petitions for cert before judgment with the high court. But the justices haven’t agreed to hear the matter yet, and the court’s calendar for this term has already filled up.

The rescission of DACA has also come before appeals courts in the Second, Fourth and Ninth circuits.

Shortly after Francisco asked the high court to take up the matter, a three-judge panel in the Ninth Circuit issued a ruling upholding a lower court’s order that required the program to stay in place. The Second Circuit has not weighed in yet, but a panel heard arguments in January.

Friday’s D.C. Circuit panel will consist of Judges Thomas Griffith and Patricia Millett and Senior Judge Harry Edwards. Griffith is a George W. Bush appointee, and Millett and Edwards are Obama and Carter appointees, respectively.

The plaintiffs in the case include the NAACP, Princeton University trustees and Microsoft Corp.

The government contends the agency’s rescission isn’t reviewable by the courts, asserting the decision to discontinue DACA is the type of discretionary action an agency can make. The Justice Department also argues the Department of Homeland Security based its decision to rescind DACA on “serious doubts” about the policy’s legality, and “more general policy concerns in maintaining such a sweeping program without Congress’s imprimatur.”

Bates first invalidated the program’s rescission last April. Bates stayed his order for 90 days to give the government time to offer the court a better explanation for why it decided to end DACA.

Secretary of Homeland Security Kirstjen Nielsen issued a memo in June responding to the court’s order, “declining to disturb” the earlier decision by then-Secretary Elaine Duke to end DACA. The memo explained the policy was “contrary to law” or, at best, legally dubious—but also offered other “sound” reasons related to enforcement to end the program.

“It is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws,” the memo said.

After reviewing the memo, Bates reaffirmed his earlier conclusion that the rescission was unlawful. He said DHS failed to adequately justify the rescission, and did little to address concerns about how heavily DACA recipients had come to rely on the program. In his April 2018 ruling, Bates noted DACA was in place for five years before the Trump administration moved to end the program. He said many of its beneficiaries had structured their lives on the “assumption that they would be able to renew their DACA benefits.”

“A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do,” he wrote in August.

A team of lawyers at Cohen Milstein and Jenner & Block are representing the plaintiffs in the case, including the American Federation of Teachers, the AFL-CIO, United Food and Commercial Workers International Union, and others. The case, NAACP v. Trump, is a consolidated challenge.

Mark Stern, a member of the DOJ’s civil appellate staff, will argue for the government.