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Is There Standing to Challenge Obama’s Deferred Action for Childhood Arrivals Program?

Two years ago, President Obama adopted the DACA Program, which announced an enforcement policy that “defers deportations from the U.S. for eligible undocumented youth and young adults, and grants them access to renewable two-year work permits and Social Security Numbers.” It has often been said that there is no way to challenge this program, since no one has standing.

But I wonder whether this is true. Imagine the following scenario. An employer interviews to fill a position and ultimately decides to hire A, with B his second choice. A is an individual who has a two year work permit under the DACA Program. The employer would not hire A if he were not “authorized” by the federal government to work. In that event, he would hire B. B sues on the ground that the DACA Program is illegal and prevented him from securing a job.

Is there standing? I think there might be. Based on the facts, B would get the job if the DACA Program were found to be illegal. Thus, there is injury in fact, causation, and redressability.

Of course, this lawsuit would require the cooperation of the employer in the sense that the employer would have to admit that he would not hire A without the program and that he would otherwise hire B. But some employers may sympathize with the lawsuit.  Moreover, this cooperation should not defeat the lawsuit in that the employers action would be genuine and would not have been done solely for the purposes of the lawsuit.

It is true that the Supreme Court has at times not recognized standing when the lawsuit seems to involve an intrusion into the executive branch, as in Allen v. Wright, but this case does not seem to raise the same issues. Moreover, in other cases, such as Lujan v. Defenders of Wildlife, the Court has not recognized standing when there are mere possibilities that harm will result, but in this case, the harm seems very likely.  In any event, the core of standing doctrine would seem to allow this lawsuit, even if there was some chance that the courts would not recognize the lawsuit, and therefore it would be worth bringing the action.

Perhaps I am missing something. But if not, then perhaps it is time for opponents of the legality of the DACA Program to get on it.

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