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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.

Reader Discussion

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on July 10, 2014 at 11:10:12 am

Hm. Seems plausible – with caveats.

The DACA Program suspended what law specifically? And what was the policy underlying the law? Specifically, can we show that the law was designed to promote the welfare of unemployed US citizens by protecting them (or, perhaps more specifically, protecting members of B’s social class ) from having to compete with undocumented immigrants? I wouldn’t be surprised if it did, but I just don’t know. And in the absence of such a showing, I don’t think we’d have standing.

Once you get standing, you’d then have to show that B’s employment prospects suffered as a result of the DACA Program – and that’s no small evidentiary burden. You can’t prevail by showing that the DACA Program produces less desirable results than would perfect immigration enforcement; you’d need to show how outcomes under the DACA Program compare to likely outcomes under plausible alternative enforcement regimes. By some counts, the Obama Administration is lean, mean deportation machine. If this machine had to again turn more of its attention to deporting youth, presumably it would have less attention to give to deporting adults. Could B really be able to show that this change in priorities would promote his employment prospects generally?

Perhaps so. At a minimum, I suspect he could make a plausible argument that a regime in which we stop issuing Social Security cards to undocumented aliens would be better for B’s employment prospects than the current world.

But again, perhaps not. If the Administration trots out an economist to say that granting Social Security cards to these aliens enables them to engage in economic activity that generates more employment than it destroys, B’s case might yet fail – or B might even lose his standing? Not sure.

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nobody.really
on July 10, 2014 at 15:37:07 pm

Nobody:

Good questions!
Mike:
Do you have an answer to these especially as to whether any law was superseded?

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gabe
on May 06, 2015 at 23:48:34 pm

government jobs oregon

Is There Standing to Challenge Obama’s Deferred Action for Childhood Arrivals Program? | Online Library of Law & Liberty

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