Wednesday, October 9, 2019


Rule of Law Clinic Files DACA Amicus Brief

supreme court

The Peter Gruber Rule of Law Clinic at Yale Law School filed an amicus brief on October 4, 2019 on behalf of a bipartisan group of 51 former 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 — in the challenge to the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (“DACA”) program, which is currently pending before the Supreme Court.

The case, brought by current DACA recipients and other advocacy organizations, challenges the executive branch’s decision to rescind deportation protections and work authorization for undocumented immigrants who were brought to the United States as children.

The brief argues that the current administration’s immigration enforcement rationale for its decision to rescind DACA is not based on any factual evidence, and did not undergo standard agency processes for determining policy. It also argues that available evidence indicates that rescinding DACA will actually do substantial harm to the country’s national security and foreign policy.

“The fact that 51 former national security officials from both sides of the aisle all agreed that deference should be earned and is not reflexive shows how aberrational the decision to rescind DACA was,” said Wajdi Mallat ’20, one of the Clinic students who worked on the brief. “Rather than seek the input of experts within the government, this administration has repeatedly ignored the evidence in front of it and asked the courts to do the same. It was an honor to work with these former officials and to learn about what proper national security procedures look like.”

The administration’s enforcement rationale for the rescission “bears no connection to the facts, record, or stated motivation for the decision under review,” the national security officials argued. They further note that “[t]his rationale not only lacks an evidentiary basis, but is at odds with the overwhelming weight of available evidence. It also fails to account for the many ways in which — in amici’s experience — DACA rescission would harm the national security and foreign policy interests of the United States.” Because the decision was not based on appropriate evidence or process, the officials argue that the decision should be set aside under the Administrative Procedure Act as “arbitrary and capricious.”

“The facts are clear — there is no national security rationale justifying DACA rescission,” said Annie Himes ’21.

The team was led by Sterling Professor of International Law Harold Hongju Koh and Visiting Clinical Lecturer in Law Phil Spector ’00. Eight current students assisted in research and drafting: Alexa Andaya ’20, Key’Toya Burrell ’21, Annie Himes ’21, Dana Khabbaz ’21, Wajdi Mallat ’20, Medina Sadat, ’20, Mark Stevens ’21, and Danielle Zucker ’20.

“Working on this brief enabled me to feel that at last, I was making a genuine difference in the legal field,” Burrell said. “The research and writing I conducted not only enhanced my legal education, but more importantly, fulfilled me spiritually by allowing me to be an advocate for justice and the rule of law…This brief showed me that it is never too early for me to do my part.”

The Peter Gruber Rule of Law Clinic focuses on maintaining U.S. rule of law and human rights commitments in four areas: national security, antidiscrimination, climate change, and democracy promotion. In addition to its work on the travel ban cases, the Clinic has also recently worked on issues related to the administration’s handling of the 2020 census, voting rights in Connecticut, and discrimination against Muslim groups.