As the White House battles the courts over its decision to end a program shielding undocumented immigrants brought into the country as children, Idaho’s attorney general is standing by his decision to challenge the law in the first place.
On Tuesday, a federal judge gave the Department of Homeland Security 90 days to better explain the administration’s decision to end Deferred Action for Childhood Arrivals, commonly called DACA, or else reinstate the program.
“DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful,” Judge John D. Bates wrote in his 60-page decision, citing “meager legal reasoning” for winding down the program.
Bates was the third district court judge to issue rulings ordering DACA protections to stay in place. A fourth judge upheld the decision to wind down the program.
Founded by an Obama-era executive order in 2012, DACA has become a powerful political lever since President Donald Trump took office, latching, somehow, to a wide variety of issues in Washington. Caught somewhere among the judicial rulings, executive rhetoric and congressional stalemate are some 700,000 “Dreamers,” waiting to find out what’s next.
Idaho Attorney General Lawrence Wasden was instrumental in forcing a decision on the issue. In June, he was one of 10 attorneys general to sign a letter to the Justice Department threatening suit if the administration didn’t end DACA by Sept. 5. (Gov. Butch Otter signed as well, the only executive to do so.)
“This is part of my office’s ongoing efforts to encourage the government to respect the separation of powers,” Wasden said in a statement at the time. “My signature on this letter is not about targeting immigrant families. Rather, it is consistent with my objection to legislative executive orders, as well as encouragement to Congress to fulfill its constitutional responsibility and address these pressing issues.”
It didn’t. When the deadline came, U.S. Attorney General Jeff Sessions rescinded the program, fulfilling a long-standing Trump campaign promise—and, echoing Wasden’s argument in the process.
“Simply put, if we are to further our goal of strengthening the constitutional order and rule of law in America, the Department of Justice cannot defend this [executive] overreach,” Sessions said in September.
He gave Congress six months to pass a bill; despite lip service in support from both sides of the aisle, it didn’t act, and the U.S. Department of Homeland Security stopped accepting DACA applications on March 5, 2018.
In a meeting with the Idaho Mountain Express on April 13, Wasden rejected any claims that his lawsuit was primarily responsible for DACA’s demise.
“I don’t take any responsibility for Congress,” he said.
He added that “[t]he problem is not the policy, it’s the law, and the process by which the law was created. Either we believe in the Constitution, or we don’t.”
The program, he said, was doomed from the start. Following Obama’s order, then Secretary of Homeland Security Janet Napolitano issued a memorandum directing enforcement to leave DACA recipients alone. The legal grounding for that mechanism was undermined less than three years later, Wasden said, when a follow-up shield program called Deferred Action for Parents of Americans was struck down in court. The case United States v. Texas went all the way to the U.S. Supreme Court, which came back with a split 4-4 ruling; following the death of Justice Antonin Scalia, the undermanned bench couldn’t break the tie. The lower court ruling was upheld, though no precedent was set.
“DACA was going to die. The question was how,” Wasden said. “To me, this was a lesser way—a more humanitarian way. It gave Congress time to fix this problem.”
Contacted Friday, the Idaho Attorney General’s Office did not comment on Bates’ ruling.
DACA provides undocumented immigrants who came to the country as minors renewable, two-year protection from deportation. To be eligible, applicants must have entered the county before their 16th birthday and have been under age 31 on June 15, 2012. They must have a clean criminal record, without a felony or significant misdemeanor. They must be at least 15 years old, and be in school, have a high school diploma or GED or have been honorably discharged from the military. They must have lived continuously in the U.S. since June 15, 2007.
It isn’t citizenship, nor does it provide a path to citizenship. But it allows recipients to get a Social Security number and a work permit, which can allow them to get a driver’s license, help them hold a job and in most states qualify for in-state school tuition.
In Idaho, 3,427 people held DACA status last year, according to fiscal 2017 numbers from U.S. Citizenship and Immigration Services, which processes the applications as part of the Department of Homeland Security.
“I’m not pointing a laser at these people,” Wasden told the Mountain Express. “I’m pointing it at the process used to create the program. … Congress has to fix this problem. If it chooses not to, then, unfortunately, that is the legal action.”