Kids hold a sign at a DACA support rally on September 5. Photo by Sara Bernard

The Resistance

‘It’s Outrageous!’ Ferguson Sues Trump Administration Over DACA Order

On Tuesday, Ferguson said he’d be filing a lawsuit “very, very soon.” On Wednesday, he filed it.

Attorney General Bob Ferguson announced Wednesday that he is again suing the Trump Administration, this time over President Donald Trump’s order to rescind the Deferred Action for Childhood Arrivals (DACA) program. A total of 11 states plus the District of Columbia have joined the suit, Ferguson told reporters Wednesday, and “this is a fluid situation,” he said; it’s possible a number of other states will join in the coming weeks, or file lawsuits of their own.

The suit was filed Wednesday in New York, in part because the early co-leads on the case include the attorneys general of New York, Massachusetts, and Washington, D.C. But Ferguson was clear on how directly and profoundly Trump’s “cruel and unlawful” order would impact the nearly 18,000 DACA recipients in the state of Washington.

“Every lawsuit that we bring, there’s obviously something important at stake,” Ferguson said. “That’s always the case with the law. On this one, there’s a lot at stake. And that’s putting it mildly. I’m not sure I have the words to truly capture how much is at stake. I’m not sure anyone can.”

Ferguson was flanked by Gov. Jay Inslee and half a dozen DACA recipients from Washington, including a legislative aide to King County Councilmember Jeanne Kohl-Welles, a member of Seattle’s LGBTQ Commission, a staffer at a law firm, and a community organizer; these young people have already earned numerous awards and accolades. But since they each came to the United States undocumented as young children, none of them would have been able to either finance their education or have the opportunity to work legally without DACA. And despite constant reiterations of how important DACA is to the state and country’s economy—the reason why, Ferguson said, Amazon, Microsoft, and Starbucks all contributed supportive documents to the case— “our worthiness cannot just be measured by our economic contributions,” said one of the Dreamers, Faride Cuevas. “This is about who we are as part of this nation. This is about our humanity, morals, and values.”

Ferguson said Wednesday’s lawsuit is based on a number of legal claims, including allegations that Trump violated the federal Administrative Procedure Act by issuing an order that “a lawyer would call ‘arbitrary and capricious.’” That’s because of how the administration presented its reasoning for Tuesday’s order—that DACA was illegal. “That’s what you heard yesterday,” Ferguson said. “There’s just one problem with that: No court has actually held that. Up until yesterday, the Department of Justice had repeatedly argued that DACA is legal. Overnight there was a change. That is something you cannot do.”

Another argument Ferguson and the other state attorneys general make in the suit is that the order violates the Equal Protection Clause of the U.S. Constitution. Trump’s past statements with regard to Latino immigrants in particular could be used to demonstrate a racial bias as one motivating factor behind the order. “Ask yourself one question,” Ferguson told the room. “If the overwhelming majority of Dreamers were Caucasian, does anybody really think this president would take the action he took yesterday?”

Ferguson also said the order violates Dreamers’ Constitutional rights to due process, primarily because the DACA program expressly promises that in exchange for giving the Department of Homeland Security (DHS) sensitive personal information, the DHS will not turn around and hand that information over to Immigration and Customs Enforcement (ICE). Until Tuesday, DACA recipients were promised on the Frequently Asked Questions page of the DACA website that their information would not be used to deport them or their families. On Tuesday, said Assistant Attorney General Colleen Melody, those elements of the FAQ page abruptly disappeared.

“Here is how I look at it,” said Inslee. “Uncle Sam went to these Dreamers and said, ‘If you open up your lives to me—tell us where you live, tell us where you were born, tell us where we can find you—we will make sure the door is open to the American Dream.’” Then, all of a sudden, Tuesday’s order “pulled the rug out from under these Dreamers.” Say what you want about the man in the White House, Inslee said, fiercely, “Uncle Sam is not a con man.”

Inslee and Ferguson were both passionate, and clearly angry, during their remarks Wednesday.

“The state right now is under a dark pall,” Inslee continued. “It is not just smoke from the fires. It is a dark pall of cruelty and inhumanity which has covered this land as a result of this president’s wilful, malicious bigotry … We know what this is. This is not an aberration by Donald Trump. This is not one fumble in an otherwise stellar career of protecting American values of fairness and justice. This is one more of a long chain and train of abuses that this president has attempted to foist on this bright nation.”

Ferguson said he struggled to come up with the appropriate words to describe the DACA order. He landed on “outrageous.”

“It’s outrageous! It is! It’s outrageous,” he said, getting heated. “I’m not gonna put up with it. … It’s not right. As Attorney General for the state of Washington, I fortunately have a hammer. It’s the law. We’ve beaten the Trump Administration over and over again. We are careful about the lawsuits we bring; we are thoughtful about the lawsuits we bring.”

But, he said, “When it comes to our Washingtonians being harmed, it doesn’t get much bigger than this. Put yourself in their shoes. You’re a Dreamer. Our country is going to deport you back to a country you may not even know. Could it be any more cruel than that, honestly? It doesn’t make any damn sense. Honestly! … As cruel as it is, it is, importantly, however, also unlawful. That’s what this lawsuit is all about.”

sbernard@seattleweekly.com

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