51 Former Senior National Security Officials to Supreme Court: Rescinding DACA Was “Arbitrary and Capricious”

Fifty-one former senior U.S. national security officials—including former Cabinet members Madeleine Albright, Chuck Hagel, John Kerry, Leon Panetta, and Samantha Power, former National Security Advisor Susan Rice, former Director of National Intelligence Jim Clapper, and former CIA Directors John Brennan and Michael Hayden—filed an amicus brief on Friday in Department of Homeland Security v. Regents of the University of California.

The bipartisan group of former officials filed the brief to oppose the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. The former officials’ brief notes that the government’s “original September 2017 decision to rescind DACA did not include a policy rationale based on immigration enforcement priorities, or foreign policy or national security objectives.” The brief argues that the DACA rescission does not serve the post hoc “cause and deter” migration rationale first introduced into the litigation by the Government more than nine months after the U.S. District Court for the District of Columbia rejected the Government’s first memorandum of explanation as legally insufficient. Accordingly, amici argue, DHS’ action must be set aside as arbitrary and capricious under the Administrative Procedure Act and the lower court judgments and orders blocking the DACA rescission should be affirmed.

The brief references both amici’s experience and the comprehensive data rebutting the Government’s unsubstantiated “cause and deter” rationale. These indicate that DACA did not increase migrant flows into the United States, and that DACA benefits only immigrants who arrived more than twelve years ago, calling into question whether DACA recission could have any “magnet” or deterrent effect on those migrating today. Further, the brief describes five key ways that the DACA rescission would actually harm U.S. national security and foreign policy interests, ranging from damaging human rights and our human rights reputation, causing regional instability, undermining military readiness, impeding law enforcement, and diverting needed funds from urgent national and homeland security priorities. Finally, the brief refutes the claim that the Administration’s decision warrants any national security deference, which is only afforded to carefully ventilated exercises of “considered professional judgment” by national security officials. The brief argues that no such deference is warranted when, as here, the DACA rescission process drastically departed from normal decision-making processes, relied on no evidence, contradicted all existing evidence, and ignored crucial national security and foreign policy considerations.

The Former National Security Officials’ amicus brief was prepared by Just Security editorial board member Harold Hongju Koh and Hope Metcalf , Phil Spector of Messing Spector, and Danielle Zucker, Alexa Andaya, KeyToya Burrell, Annie Himes, Dana Khabbaz, Medina Sadat, Mark Stevens, and Wajdi Mallat of Yale Law School’s Peter Gruber Rule of Law Clinic. The DACA case will be argued before the Supreme Court on November 12, 2019.

  

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