The woman who created the 2012 deportation amnesty for Dreamers filed a lawsuit Friday protesting the Trump administration’s move to phase out the program, saying the decision was done on President Trump’s executive “whim.”
Janet Napolitano, who created the Deferred Action for Childhood Arrivals program as President Obama’s homeland security secretary, is now the president of the University of California and is leading the school system’s lawsuit demanding the program be reinstated.
She said her school system stands to lose money and the chance to educate some of its 4,000 illegal immigrant students, as well as perhaps having to let go its illegal immigrant staff.
“We really support out DACA students and part of the reason we’re filing this lawsuit it to help protect their rights,” Ms. Napolitano said.
She created the DACA program by memo in 2012, issuing guidance to immigration agencies to have them create an application process that has allowed hundreds of thousands of young adult illegal immigrants to be granted a stay of deportation, work permits, access to some taxpayer benefits and a deeper place in U.S. society.
But after a court ruled a subsequent similar amnesty known as Deferred Action for Parents of Americans illegal in 2015, and facing a legal deadline imposed by the same states that defeated DAPA, the Trump administration concluded it couldn’t defend DACA.
Rather than have a judge rule DACA illegal and shut it down completely, Mr. Trump and his team created a six-month phaseout.
Ms. Napolitano said Mr. Trump didn’t give good legal reasons for the phaseout, and said he needed to go through the normal rule-making process to revoke the policy — though Ms. Napolitano skipped over that policy herself in creating DACA.
In a call with reporters Friday, Ms. Napolitano said that even though DAPA was ruled illegal, she believes DACA is different enough that it would pass muster.
Legal analysts have disputed that conclusion.
Ms. Napolitano also defended her decision not to go through the rule-making process for DACA in 2012, saying she had only intended to set up a case-by-case processing of applications. She said in canceling the entire program categorically, Mr. Trump’s decision is bigger, and so it needed to go through the rules process.
That’s likely to be a tricky sell to judges. The courts that struck down the DAPA program cited the lack of rule-making as one of the reasons DAPA was illegal. And they used DACA’s operations as a model for ruling DAPA illegal.
Her lawsuit is the latest in a flurry of legal challenges this week. A number of Democratic-led states have also sued, arguing the revocation of DACA is unconstitutional because most DACA recipients are Mexican.
Ms. Napolitano said she’s not making that claim in her lawsuit, though she is claiming another constitutional injury, saying the university and the students’ due process rights have been violated because they’ll lose the “contributions” of those students to the school.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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