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Napolitano Sues Trump to Save DACA Program She Helped Create

The lawsuit is the among a series of early, high-profile legal challenges to the president’s decision on Tuesday to abruptly end the DACA program, which was aimed at helping undocumented immigrants who had been brought illegally to the United States by their parents when they were children.

It is also the latest attempt by the president’s critics to oppose Mr. Trump’s aggressive immigration policies, using the courts as a cudgel against his travel ban, enhanced immigration enforcement efforts and now, the decision to end the DACA protections.

Another suit was filed on Wednesday in New York by more than a dozen Democratic state attorneys general, alleging among other things that the decision to end the DACA program was motivated by racial animus toward Mexicans, as evidenced by Mr. Trump’s comments during the presidential campaign.

In a news conference at the Justice Department this week, Attorney General Jeff Sessions called the program an “open-ended circumvention of immigration laws,” an “unconstitutional exercise of authority by the executive branch” and an example of “unilateral executive amnesty.”

“The program known as DACA,” Mr. Sessions said simply, “is being rescinded.”

Immigration advocates, business executives, academic leaders, foreign governments and lawmakers in both parties condemned that action. Several legal rights groups have announced plans to fight the decision even as activists have mounted daily political protests in Washington and other cities across the country.

But Ms. Napolitano is uniquely positioned to plead the legal case on behalf of the policy, which she helped to develop for former President Barack Obama during her tenure as his top homeland security official.

It is her signature on the June 15, 2012, document that established the DACA program. In the three-page memorandum, she argues that the nation’s immigration laws were not designed to “remove productive young people to countries where they may not have lived or even speak the language.”

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In the five years since she issued the memo, hundreds of thousands of young, undocumented immigrants signed up for legal work permits and DACA’s protection from deportation. The action by the Trump administration on Tuesday will allow some of those immigrants to remain protected for up to two years, but no new applicants to the program will be accepted. And after a six-month implementation period, many of will lose the right to work and will be subject to immediate deportation starting in early March.

While Mr. Trump’s action formally ended the program, the president appears to have had second thoughts. In a tweet just hours after ending it, Mr. Trump urged lawmakers to “legalize” the policy with legislation and said that if they do not he would “revisit” the issue.

In the lawsuit, Ms. Napolitano argues that by rescinding her 2012 memorandum – even with a six-month delay in implementation — Mr. Trump and Mr. Sessions violated rules under the Administrative Procedure Act, which requires the government to provide public notice and seek comment from affected parties before revoking a significant policy.

“The government just can’t turn 180 degrees on something like DACA without taking the proper steps,” Ms. Napolitano said. “They didn’t take the proper steps.”

Critics of Mr. Obama’s used the very same argument to attack a similar executive action that sought to protect undocumented parents of Americans and lawful residents. That program was never put in effect after Republicans sued, claiming in part that the president had violated the Administrative Procedures Act.

Ms. Napolitano’s lawsuit, which was filed in Federal District Court in Northern California, also claims that the decision to rescind her DACA memo was “arbitrary and capricious” because the Trump administration officials did not offer an expansive legal argument justifying their decision.

“If the agency wants to change the rules, they need to explain why,” said Alexander A. Berengaut, a lawyer for Covington Burling, a law firm that is representing Ms. Napolitano and the university system.

The lawsuit contends that the Trump administration needed to provide a more substantial justification for ending the program because those who enrolled in it made long-term decisions like enrolling in college or getting a loan based on the assumption that it would continue.

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And finally, the suit alleges a violation of the constitutional due process rights of DACA enrollees.

Stephen H. Legomsky, a professor at the Washington University School of Law and a former general counsel at the United States Citizenship and Immigration Services, said the university’s legal case is making plausible arguments for the court to consider.

“I definitely think this lawsuit stands a good chance of succeeding,” Mr. Legomsky said. “So much is going to turn on which judge they land.”

Lawyers for Ms. Napolitano are urging the court to issue an injunction preventing the federal government from ending the program.

The request for action by the courts is not as urgent as during the travel ban case, when lawyers asked for immediate relief from the court system because people were trapped in transit or at airports. And federal judges often defer to the executive branch on immigration policy.

Still, she said on Thursday that the court should take the case seriously because the elimination of the program has the potential to be devastating for many young immigrants.

“These are young people who have done all we have asked at them,” she said. “They have succeeded academically. They have graduated. They’ve started businesses. I think we’re suing to vindicate the rights of our students and the interests of the university.”

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