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AG Derek Schmidt: DHS decision to wind down DACA policy is lawful

Release Date: Aug 27, 2019

TOPEKA – (August 27, 2019) – The Department of Homeland Security’s (DHS) decision to wind down the executive-branch immigration policy known as Deferred Action for Childhood Arrivals (DACA) was neither arbitrary nor capricious and should be upheld, Kansas Attorney General Derek Schmidt today told the U.S. Supreme Court.

“DACA recipients, who were brought to the United States as children, are a sympathetic group with significant public support, and I continue to believe Congress should address their unique circumstance,” Schmidt said. “But in the absence of congressional action, no president – of either political party – has the unilateral authority to rewrite or suspend the law. By purporting to create DACA by executive action, President Obama established the cruel illusion of a program that in fact cannot lawfully exist, and in the process his unilateral action short-circuited congressional negotiations toward permanent immigration reform. The U.S. Supreme Court should make clear that it is not illegal to cease operating a federal program that was unlawfully created in the first place. Perhaps certainty from the nation’s highest court will finally give Congress the will to fix our broken immigration system.”

In 2016, a split 4-4 decision by the U.S. Supreme Court affirmed a lower court ruling that invalidated an executive-branch expansion of DACA and a closely related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Based on those rulings, DHS concluded that DACA itself is also unlawful and moved to wind it down. The University of California and several other parties sued the Administration, claiming the decision was made in an arbitrary or capricious manner in violation of the law. Three lower courts agreed, and those cases have been consolidated and brought before the U.S. Supreme Court for review. At issue in this case is whether the 2017 decision to wind-down DACA was made properly under federal administrative law.

In the legal brief filed today, Schmidt along with 11 other state attorneys general and the governor of Mississippi, asked the Supreme Court to rule that the DACA program could be rescinded because it was not legally created in the first place.  

The case is Department of Homeland Security v. Regents of the University of California, No. 18-587. A copy of the states’ brief is available at https://bit.ly/329qqE1. The Supreme Court is scheduled to hear oral arguments in the case on November 12.  

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