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    This will not stand: Judge orders DACA fully reinstated

    This will not stand: Judge orders DACA fully reinstated

    Expect SCOTUS ultimately to vindicate Trump’s executive power to end a unilateral Obama program created in defiance of Congress and existing law.

    The lower federal courts repeatedly have attempted to strip the executive (meaning THIS executive, because he’s Trump) of his constitutional and legislatively-granted powers.

    We saw it in the Travel Order cases, which resulted ultimately in a Supreme Court rebuke of this judicial overreach.

    We are seeing it also as to DACA, including ludicrous rulings that an administrative action by Obama cannot be terminated by Trump. One of the cases, arising out of San Francisco, almost made it to the Supreme Court. But the court refused to take the case requiring the government first to appeal to the Ninth Circuit, US Supreme Court will not allow Trump to bypass 9th Circuit in DACA case.

    That San Francisco district court injunction was an abomination.  I wrote of that Order:

    Another day, another judicial intervention trying to prevent Donald Trump from exercising his lawful Executive Branch powers.

    Of course, that’s not the verbiage the court used, but it’s a fair characterization of the San Francisco federal district court decision (full embed at bottom of post)(pdf.) in a lawsuit brought by Janet Napolitano on behalf of the California Regents seeking an injunction against Trump’s plans to end the DACA program.

    The essence of the decision is that the stated reasons for ending the program were that the Trump administration considered the DACA program an unconstitutional attempt by Obama to evade the law as passed by Congress. The judge disagreed with the administration as to whether DACA was constitutional or not, and hence found the decision to end the program arbitrary and capricious as applied to people already enrolled….

    What’s so outrageous about the decision is that it equates a disagreement as to policy to a lack of policy. There was nothing arbitrary or capricious in the administration taking the policy position that the decision whether to continue DACA should rest with the Congress. It may be a policy choice the Court disagrees with, but it was a policy choice nonetheless, grounded in what even the Court found to be an arguable interpretation of the law. It was was the valid exercise of executive power to reverse the policy decision of the Obama administration because of a different view of executive power….I would expect this decision to result in another stay, if not from the 9th Circuit, then from the Supreme Court.

    There is a constitutional crisis in progress, one in which the Judiciary wrestles policy decisions away from the Executive Branch. Elections matter on policy decisions, unless that election is won by Donald Trump.

    In February 2018, a federal judge in Brooklyn also enjoined the end of DACA. (Opinion here.) There also is a case in Texas that is scheduled for hearing soon.

    Now we have a third district court order, this time out of D.C.  The Opinion is here.

    Buzzfeed reports:

    A federal judge said on Friday that the Trump administration must reinstate the Deferred Action for Childhood Arrivals (DACA) program in its entirety — because the Department of Homeland Security failed to “give a rational explanation for its decision” to end it.

    US District Judge John D. Bates — who has been hearing the challenge brought by the NAACP and others to the administration’s decision to end DACA — put his decision on hold for 20 days “to permit the government to determine whether it intends to appeal the Court’s decision and, if so, to seek a stay pending appeal.”

    Bates initially ruled against the administration in April, but put his ruling on hold to give the government a chance to provide a rational for its decision.

    In Friday’s ruling, Bates found that “the Court sees no reason to change its earlier determination that DACA’s rescission was arbitrary and capricious.”

    The L.A. Times further elaborates on the Judge’s rationale:

    Bates also rebuked the administration for what has been the administration’s practice (though he stuck to this one instance) of simply deciding it wants to do something and then going full steam ahead without following well established laws and procedures for how regulations and programs must be created or dismantled. In short, the government can’t just say, “we don’t like this one anymore so shut it down,” as it has tried to do to environmental, energy, federal land use, education and other policies.

    The Administrative Procedure Act, among other governance rules, says the government must present a reason for doing something, and if it wants to undo something, it must also have a reason.

    “The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program,” Bates wrote. “Rather, the Court simply holds that if DHS wishes to rescind the program — or to take any other action, for that matter — it must give a rational explanation for its decision.”

    Prediction: This will not stand.

    The Court in the D.C. case asserted that the government provide not rational explanation for the policy change. But in fact, reading the court opinion it’s clear that the Judge just didn’t like the explanation:

    Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do. The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.

    DACA was an Obama end-run around Congress. Trump ended that end-run.

    I expect SCOTUS to uphold the current President’s power to end a program started by the prior President unilaterally and contrary to existing law.




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    Observer | August 4, 2018 at 10:34 am

    “A conclusory assertion that a prior policy is illegal . . . simply will not do.”

    The “conclusory assertion” that the executive-created amnesty program was beyond the constitutional authority of the president was acknowledged on multiple occasions by none other than Barry Hussein Obama, the very same president who (after he realized that it would benefit him politically in the 2012 election) simply ignored the constitutional limits on his power and went ahead and authorized the program anyway.

    Ragspierre | August 4, 2018 at 11:12 am

    While I agree with the Prof. a couple of options occur…

    1. replace the EO rescinding DACA with a more tightly drawn one, resetting the whole matter, and/or

    2. have Congress modify 5 U.S.C. § 706(2) and its brethren to change the analysis CAREFULLY (since a future POTUS could use them perversely

    One other observation: IIRC there are challenges to the Barracula EO still wending their way through the courts. I don’t follow this closely, so I could be mistaken. If there are not, there should be, and I can see several reasons why there should be some new ones.

      Mac45 in reply to Ragspierre. | August 4, 2018 at 11:50 am

      Your two numbered suggestions are essentially worthless.

      Replacing the rescinding EO, with another EO, will simply start the judicial review process all over again. We saw this with the immigration limitation EOs. It would be counter productive.

      There is nothing wrong with 5 USC 706. What happened here is that the judge cherry-picked the statute to manufacture a reason to reject the arguments of the Administration. One of the claims regarding the Obama DACA was that it was an unconstitutional action by President Obama and was in direct violation of federal law. This is the linchpin of the adminsitration’s argument. Yet, the judge chose to ignore that. H did not rule as to the constitutionality of the initial action to set up the program. If, the program is either unconstitutional OR illegal, then any action to rescind the program is both constitutional AND legal. Yet, in the cases regarding the DAPA program and the DACA program, the courts steadfastly refuse to rule, definitively, on the constitutionality and/or legality of creating a structured program to shield people, who are violating the law, from being dealt with as required by law.

    Subotai Bahadur | August 4, 2018 at 12:52 pm

    So it comes down to the Courts functionally ruling that the Constitution and the law must defer to the actions, even illegal and unconstitutional actions, of any Democrat. And that no one not a Democrat can take any steps to bring those illegal and unconstitutional actions within the law and Constitution.

    Simultaneously, the Democrats are working to convince Americans, including White Americans, that Whites are as a race hostile to everybody else and due to race and the nature of society can never, ever, ever be anything else and must be destroyed by a newly racially aware coalition of everyone non-White who does not accept that society.

    Combining these two things, we can see a logical outcome that as this racially aware coalition forms, and Whites are attacked that they themselves will become “racially aware” and define themselves as under attack by everyone else. And that all faith in the law, the Constitution, and judicial due process is pointless.

    Taking the Left’s actions to the logical conclusion, it is going to get extremely energetic and untidy, AND that the results for the Left and those who support the Left’s anti-White purge are not going to be what they think they are going to be.

    The Left, politically and judicially, have made the rules. They are going to see how they like living under them.

      I’ve finally caught the judge’s remarks as published. In his mind, he offered the government a chance to explain to him just why this is unconstitutional, as Sen. and later AG Sessions strongly holds. The government has expressed through deed that it would prefer not to. I’m left wondering what in blazes is going on.

      Can it be laziness – deliberate laziness? Is it refusal to acknowledge the court as the sole arbiter of what is unconstitutional now that the matter has been brought before him, and they don’t want to set that precedent, apparently already firm in the judicial branch’s mind? Something is rotten with this case, and I find it sad and unfortunate I cannot narrow down precisely what.

      I also find it lazy to take the route of some and call Judge Bates a liberal activist judge. He does not fit the liberal activist mold at all.

    This is the original decision of Judge Bates, if anyone is interested. It is excessively long, but an interesting read.

    The constitutionality of the decision to defer enforcement of existing law, with regard to an entire class of offenders, has to be made BEFORE anything else can be done. If that action is not constitutional, then it makes no difference whether any other laws apply to changing the decision or not.

    Bates chose to sidestep the question of whether the initial action, which created the DACA, was constitutional. The Administration was not too concerned with that, as, if was assumed that DACA was constitutional and legal, then the same discretionary authority which allowed the Obama DHS to create it would also allow the Trump DHS to use its discretion to modify or rescind the program. What Bates did was to decide that once the program was established it could not be modified or rescinded unless the agency showed that there was some compelling reason to begin enforcing the law with regard to this class of people. And, he refused to accept any of the reasons put forth by the current administration. In other words, he ignored the constitutional authority aspect, then turned around and set the bar for the discretion of the current administration, to exercise the same discretion as the previous administration in this area, much higher that its level to decide NOT to prosecute a class of offender, which was used to justify establishing DACA in the first place. This is neither well grounded in law or logic. If the previous administration had the discretional authority to not enforce the law, then the current administration should have the same discretional authority to begin enforcement of the law again. None of the members of the DACA program were granted any immunity from prosecution or other enforcement actions, applicable under federal law, by any constitutionally recognized authority.

    Following Bates’ original decision it is clear that nothing the administration could do would have changed it. So, it will be appealed.

      Well, was proper federal procedure followed when establishing the policy to begin with? I’m asking because I don’t know, and I do not know who does.

        Mac45 in reply to JBourque. | August 5, 2018 at 12:51 pm

        This is the one point which no court has ever addressed. So, it could well be that the program was both a constitutional and legal. The current administration’s position is that a program which arbitrarily defers enforce of law against an entire class of people, rather than an individual, is a violation of the immigration laws. This has never been addressed by the courts. What Judge Baker did was to assume, is suppose based solely on the fact that the DACA program existed, that it was both a constitutional and legal exercise of executive authority.

        But, and this is the kicker, even if DACA is both constitutional and legal, it was set up as a temporary deferment program, not a permanent one. And, this would make it allowable for the current administration to rescind the program. It was obviously not done in an arbitrary or capricious manner, the excuse that Baker used to rule against the Administration, as the current Administration is honoring the existing deferments, just not renewing them or granting new ones. The maintenance of this program is the responsibility of the Congress, as Trump made very clear. If the Congress chooses not to act to normalize the status of the members of this program, that is their prerogative and the Executive Branch is bound by that Congressional decision.

    ConradCA | August 4, 2018 at 6:11 pm

    It’s time for Trump to declare that he won’t accept the judge’s ruling and ignore it. He should appeal to the SC directly and hopefully this will be enough for them to rule in his favor.

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