Akin Gump Files U.S. Supreme Court Amicus Brief on Behalf of Historians and the Korematsu Center in DACA Case

(Washington, D.C.) – Akin Gump served as pro bono counsel to the American Historical Association, the Organization of American Historians, 42 historians and the Fred T. Korematsu Center for Law and Equality in filing a Supreme Court amicus brief today in Dept. of Homeland Security v. Regents of the University of California. The brief supports a legal challenge to the federal government’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program.

The challengers allege that the rescission of DACA is arbitrary and capricious based on the agency’s contemporaneous explanation, in violation of the Administrative Procedure Act and Equal Protection Clause. The federal government argues that DACA’s rescission is not judicially reviewable and that its rescission was adequately justified. 

In their amicus brief, amici assert that the rescission is infected by racial animus discernible through code word analysis, and that such analysis is a widely accepted methodology in the field of history and regularly relied on by courts. Amici analyze the history, context, and contemporaneous statements by President Trump that reflect anti-Mexican and anti-Latino sentiment behind the decision to rescind DACA. Those statements, the brief says, are consistent with racially coded language he used throughout his campaign and presidency, and reveals that the Trump Administration’s explanation for rescinding DACA is impermissible pretext.

Lead pro bono counsel Pratik Shah, co-head of the Supreme Court and appellate practice at Akin Gump, observed, “The Supreme Court made clear in the census case that it will not blindly accept the government’s invocation of facially neutral justifications. Here, the government’s (largely post hoc) explanations and coded attacks on DACA recipients cannot mask its discriminatory motive.”

Oral argument is scheduled for November 12, and the Supreme Court is expected to issue a decision by next June.

Attorneys from Akin Gump serving as pro bono counsel on the brief, in addition to Mr. Shah, include Supreme Court and appellate partner Julius Chen, litigation senior counsel Jessica Weisel and litigation associate Nathaniel Botwinick. The amici were also represented by corporate partner Alice Hsu. The amicus brief is available by clicking here.

Akin Gump Strauss Hauer & Feld LLP is a leading international law firm with more than 900 lawyers in offices throughout the United States, Europe, Asia and the Middle East.

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