Judge prevents Trump from reversing Obama DACA policy (Updated)
Another case of the Judiciary wrestling policy making authority away from the Trump Executive Branch
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.
All agree that a new administration is entitled to replace old policies with new policies so long as they comply with the law. One question presented in these related actions is whether the new administration terminated DACA based on a mistake of law rather than in compliance with the law….
Significantly, however, the agency’s judgment here was not based on a policy change. It was based on a mistake of law. If the instant order is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has been the victim of a colossal blunder….
The Judge did not require that new applicants be accepted into the program, so the decision effectively grandfathers existing DACA recipients into a program that even the Judge admits need not continue in its present configuration.
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.
Law Professor Josh Blackman summed up the absurdity of the decision:
The upshot is that because the Trump Administration understood executive power in a more narrow fashion than did the Obama administration, the former acted arbitrarily and capricious. I’ve never seen anything quite like it
The Justice Department issued this statement:
“Tonight’s order doesn’t change the Department of Justice’s position on the facts: DACA was implemented unilaterally after Congress declined to extend these benefits to this same group of illegal aliens. As such, it was an unlawful circumvention of Congress, and was susceptible to the same legal challenges that effectively ended DAPA.
“The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner. Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. The Justice Department will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation.”
It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.
It is important that the Court did not rule that the DOJ opinion on the legality of DACA was in bad faith or a pretext, or completely unfounded. The Court simply disagreed with DOJ’s assessment:
While at least some of the majority’s reasons for holding DAPA illegal [in a 5th Circuit case] would apply to DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion stated. An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no such analogue in the INA. And, there is a difference between 4.3 million and 689,800. Finally, the criticism that DACA had been mechanically administered without the exercise of discretion in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum,
the DAPA litigation was not a death knell for DACA.
Significantly, the Court certified the case for interlocutory appeal (meaning the government doesn’t have to wait to appeal) because there was a good faith dispute as to whether DACA was illegal. But if that’s the case, then how could the Court simultaneously find a clear mistake of law rendering the Trump administration decision arbitrary and capricious?
CERTIFICATION UNDER 28 U.S.C. § 1292(b)
Pursuant to our court of appeals’ order dated December 21, 2017, the district court hereby certifies for interlocutory appeal the issues decided herein (i) whether (or not) the rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C. § 1252(g), (ii) whether (or not) plaintiffs have standing, and (iii) all other questions interposed by the government in its motion to dismiss under FRCP 12(b)(1). This order finds that these are controlling questions of law as to which there is substantial ground for difference of opinion and that their resolution by the court of appeals will materially advance the litigation. This order realizes that the same issues are reviewable upon appeal of this injunction. Nevertheless, out of caution and to avoid any problem concerning scope of review, the district court so certifies. [emphasis added]
It you want to know why so many people view the various district courts in anti-Trump cases on immigration and DACA, among others, as engaging in policy making, this section from the opinion is revealing:
In terminating DACA, the administrative record failed to address the 689,800 young people who had come to rely on DACA to live and to work in this country. These individuals had submitted substantial personal identifying information to the government, paid hefty fees, and planned their lives according to the dictates of DACA. The administrative record includes no consideration to the disruption a rescission would have on the lives of DACA recipients, let alone their families, employers and employees, schools and communities….
As plaintiffs’ evidence shows, DACA recipients, their employers, their colleges, and their communities all developed expectations based on the possibility that DACA recipients could renew their deferred action and work authorizations for additional two-year periods.
There was another telling passage in the opinion. The government had obtained a Supreme Court ruling halting this Judge’s decision that the government needed to turn over to the plaintiff’s documents potentially covered by the attorney-client privilege. The Judge’s nose seems distinctly bent out of shape by that and a related Trump tweet in December 2017:
Delays in this case, however, have made it impossible to send a final judgment to our court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion without giving plaintiffs an opportunity to examine the complete administrative record. Government counsel, however, succeeded in obtaining an order from the Supreme Court postponing proceedings on completing the administrative record until after ruling on its FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative record. Although plaintiffs are likely to prevail on even the truncated administrative record, as set forth above, our appellate court might disagree with that conclusion or the agency might seek to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all flaws, if any more there be, lurking in the whole record. One such possibility suggested by plaintiffs is that the rescission was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA. A presidential tweet after our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus. These theories deserve the benefit of the full administrative record. It will be impossible to litigate this case to a fair and final conclusion before March 5.18
18 On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our Country at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial notice of this tweet. Defendants object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED
The truly outrageous nature of the decision is that the core of the decision is nothing short of concern trolling, the claim that the court is really trying to help Trump by saving him from bad legal advice:
On provisional relief motions, district judges must consider whether (or not) such relief would be in the public interest. On this point, we seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended. In September, President Trump stated his support for DACA, tweeting: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really! . . . .” He has also called upon Congress to ratify DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958).
For the reasons DACA was instituted, and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below)….
The only hardship raised by defendants is interference with the agency’s judgment on how best to allocate its resources in keeping our homeland secure, as well as its judgment in phasing out DACA. Significantly, however, the agency’s judgment here was not based on a policy change. It was based on a mistake of law. If the instant order is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary injunction will set that right without imposing any policy unwanted by the Executive Branch.
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.
Prof. Blackman has a scathing analysis in National Review, A Ludicrous Ruling That Trump Can’t End DACA:
This remarkable 49-page order has all the aesthetics of a judicial decision but is, at heart, an amateur act of punditry. Judge Alsup paints the picture of a divided White House, wherein “the Chief Executive publicly favors the very program [his Administration] has ended.” Citing a “presidential tweet,” the court suggests that DACA’s recision “was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA.”
These talking points could have been plagiarized from the MSNBC chyron. Such rhetoric in a judicial decision would have been unthinkable barely a year ago. But now it passes for the new normal. Once again, the judiciary has attempted to shackle President Trump from making his own judgments about how to exercise his own power. The Supreme Court has reversed Judge Alsup’s outlandish rulings on DACA before. And it will do so again.
Read the whole thing.
Regents v DHS – Injunction Halting DACA Termination by Legal Insurrection on Scribd
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This judge is ripe for impeachment. I know even during Jefferson’s time, he noted impeachment didn’t even concern judges as much as a scarecrow scares crows, but it’s time to start using the tool.
Okay, past time to start impeaching judges, but what’s the saying? Have to start somewhere.
When was the last time that a Federal judge was impeached and removed? Do you expect the Senate to convict any liberal judge when the Roll-Over Party has only a one seat majority? I sympathize with your sentiment but reality sucks.
Just starting the procedure will wake them up.
As a lawyer, I can tell you, even when a defendant wins a contempt motion against them, they straighten up after that.
December 8 2010 it too 2 years.
Cite Jackson’s response to Marshall, paraphrased as this judge has made his decision, let him enforce it, and procede as normal and impeach this judge to boot.
I sincerely doubt Trump hung that old Jackson portrait for its artistic value. There is still leeway to go through the motions with this obstructionist judiciary but the spirit and backbone of Jackson walks the halls of the West Wing.
proceed, damn thumb
Ultra vires, anyone?
When I began to learn about executive orders I began my wrestling with EOs and Article I, section 1. To this day the wrestling continues for a simple reason: because the two can’t be reconciled, yet we operate on the principle that EOs are actually law.
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
All means all and that’s all that all means.
In several places, in the Constitution, the absolutist words of “all” and “no” are used. Yet so many, including a fair number from Harvard and Yale, refuse to believe that these words mean what they say, wishing that the Constitution was what it clearly isn’t.* In the end, the Constitution was intended to limit, limit, limit the created government.
*Living Constitution is the current descriptor of this technique of misdirection. But the Constitution itself belies this very characterization. Article V, the procedural and structural mechanism instituted to amend the document, would have had no purpose if the document was from the outset automatically flexible to change with the times without further say-so from the people. Supporting this is the constitutional doctrine that holds that every provision in the Constitution is to be given the highest regard.
Never thought about it that way. Article V is proof that the framers anticipated that some changes might/would be necessary. And drafted the means by which those changes could be made, and that those changes would be made with the consent of the governed. It was hardly a static document. FDR famously called it a relic of the horse and buggy era, an obvious attempt to disparage the document. But it was he who showed his ignorance of the framers’ vision.
No, we don’t. There’s your error, right there. Nobody claims executive orders are laws. Most of them are simply instructions from the boss to his employees on how to do their jobs. Some are specifically authorized by and pursuant to laws made by Congress; e.g. the whole classification system for documents rests on a law, but that law gives the power to decide which documents are to be classified how to the president.
There’s your error, right there. Nobody claims executive orders are laws.
And there’s your error. A great number of people claim exactly that. They’re dead wrong about it, but that doesn’t stop them from assuming and claiming it. Hell, it doesn’t even slow them down.
Yeah, no, a federal judge has no more or less authority to prevent immigration policy as I do, unless you cede that authority to him. I’m appalled that president Trump is.
You have to remember Judicial policy in the United States. The general rule is:
“A Judge is right, until a higher Judge tells him (or her) that he (or she) is wrong.”
This is why there is an interlocutory appeal process prior to having to appeal final litigation.
Basically a Judge, in their own Courtroom, is the closest thing to a deity that you will find on this planet. MOST of them are cognizant enough not to abuse that power. The ones who do usually eventually tick off the wrong person in a position of relative authority, and end up “retiring” rather than face the backlash from ticking off that person (which can take many subtle forms which will never be seen by the public, but make that Judge’s life miserable beyond belief).
Trump’s EO are blocked because of his position on travel and immigration but why shouldn’t the courts have considered the Obama Administration’s intent on opening the borders to those dangerous to the US and it citizens? Answer: The clear and present danger to the Progressive States of America comes from conservatives, Republicans and constitutionalists. Agenda overrules law…Party before country…
What kind of teeth does a ruling like this have anyway? Like the numerous lower and 9th Circus rulings on the “travel bans” can’t the Administration just proceed as the court’s findings are irrelevant and everybody knows it.
Well, theoretically, they could. What would happen in the real world goes something like this:
1. Every Federal employee, including the military, could justify refusing to obey him, on anything, because the 200 year tradition is that the judge’s order must be obeyed unless overruled by a higher court.
2. Likewise, every state would be able not only to not cooperate, but arrest any federal employee attempting to obey the EO, because they become ordinary citizens without legal authority.
3. Ordinary citizens would be able to use armed force against those employees for the same reason.
As to your #1, then we living in a country ruled by the whim of any Federal judge no matter how much a nitwit? Don’t think so!
You see it as a violation of the Constitution. Rags or some other Leftist doesn’t. Which of you will be adjudged right? The side with the most guns, ultimately.
The judge seems to be saying that Trump’s view of the situation is Constitutionally incorrect, and the President does indeed have the power to do whatever-the-hell Obama did, and so the question is not one exclusively for Congress. Therefore the President can’t say it’s not up to the President, declare his predecessor’s action void, and toss it all to Congress.
Which just backs the judge into a logical hole, because if it’s a matter of Executive decision, and Obama can make such policy decisions, then surely so can President Trump.
The only advantage to all this singing and dancing would be that it removes basic control of the DACA program from Congress, so President Trump can’t use it as a bargaining chip to get Congress to do something he wants, like, say, fund a wall. So then Trump is free to declare DACA dead, and Congress is free to go its merry way, wallowing in its usual torpor. Score—Trump wins on DACA, Congress wins on everything else (at least for now).
All very nice, but it’s hard to read the Constitution as delegating this sort of policy control to the courts.
The judge concedes exactly that. If Trump doesn’t like DACA he’s free to end it. But, he points out, Trump does like DACA. Therefore he didn’t make a policy decision to end it. Rather, the only reason he ended it was that his lawyers told him he had to. Well, says the judge, I think his lawyers were wrong, so since his order was based neither on policy nor on law, it’s invalid.
This has all the structure of a logical argument, and none of the substance. It’s like this judge has seen logical arguments and studied them, and knows what they should look like from the outside, but he’s never actually tried making one before, and doesn’t understand how they work.
I hear a bench-slap a-coming.
Any bets on if the Administration seeks to have it appealed in the 9th circus or if they go straight to SCOTUS?
Trump and Sessions could have avoided playing this game with the leftist oligarchs in black robes populating the Ninth Circuit with a “sue and settle” strategy used so well during the Obama years.
The DOJ should have consented to the amendment of the pleadings in the action against DAPA in Texas and added DACA, and then let the conservative judge there do what the law requires.
DOJ could have entered a settlement with the plaintiffs after the court entered an injunction against DACA.
Yes, that’s exactly what I wrote here at the time.
From the travel ban to this nonsense, there has to be some mechanism that prevents a lower level judge to have the power to stop any executive action. It may be the proper way to proceed but if the “Resistance” infiltrates the federal courts then they can pretty much stop any executive action. There needs to be a scorecard of all judges so that if they are routinely reversed, they need to lose their power to stay an EO. Just like the msm needs a scorecard so that we can know without searching that a media source hs a very bad score and can be restricted from reporting on a certain subject for a period of time. Sort of like ABC did with Brian Ross and Trump. We had enough of “No response” under GWB. It’s time to make the truth mean something again.
See my response above. It would lead by about three steps to a hot civil war. I think we need one of those, because our differences have become irreconcilable, but is everyone ready for that?
The leftists oligarchs in the resistance are quite fond of citing and quoting what Trump has said publicly on the campaign trail and in office. This judge even quoted statements on twitter as a way to back into supporting the outcome he wanted.
Ironically, Obama must have publicly stated that ZeroCare was “not a tax” publicly about 100 times. But when the suits proceeded, the judiciary had a bad case of selective amnesia and allowed the US DOJ to make an argument that it was a tax, and they upheld the law on that basis in 2012.
The judiciary (in the person of John Roberts) did not forget what 0bama or had said. On the contrary, it specifically noted that they had taken this position, and called it a lie. The key principle of Roberts’s decision was that the courts don’t care what Congress calls something, they only care what it is. If Congress calls a tail a leg, a dog still only has, at most, four legs, because a tail remains a tail no matter what you call it. Congress cannot turn a penalty into a tax, and it cannot turn a tax into a penalty.
Indeed one of the precedents he cited was from the New Deal era, in which the Supreme Court found that a so-called “tax” was actually a penalty, and struck it down. In exactly the same way, Roberts argued, this so-called “penalty” is in fact a tax, and therefore should be upheld. It looks like a tax, it acts like a tax, therefore it’s a tax no matter what Congress says.
Being forced to buy a product or have to pay a fine is the strangest “tax” I’ve ever heard of. The mental gymnastics roberts had to go through to get from here to there must’ve put him into the hospital.
Not really. While it wasn’t a much publicized opinion it was out there before the case went to SCOTUS and I have to say, on that particular point, it seems correct and warranted by precedent.
It’s not a fine. You are not forced to buy the product; you have every right to decline to buy it, and pay the tax. If it were a fine, you would not have the choice. One of the key distinctions between a tax and a fine is precisely that you have no right to break the law and pay the penalty. A penalty is not a license to break the law, it’s a punishment for doing so. The fact that it’s perfectly lawful to choose not to buy insurance and to pay the money proves that it’s not a penalty but a tax. And there are plenty of taxes that you can exempt yourself from by taking some voluntary action.
President Trump is blessed by his opponents. Rulings like this are a gift from heaven for a populist president that ran on ” the system is rigged”… Over and over these progressive judges PROVE in their rulings and actions, that the system really is broken if not rigged.
More ammo for the President to bust up the 9th … work harder on judge nominations, AND gives him a talking point to show, there is no dealing with his opponents. They might make a deal only to run to the courts to undo the parts they don’t like after the fact.
1) Obama’s original action was outside the law and the Constitution.
2) Trump restored the statutory law as passed by Congress and signed by the President.
3) He did not declare any mass roundup of illegal invaders, as he could have. He gave Congress, the lawmaking body, the chance and time to decide what law they wanted, and did not seize any power not granted to him by the Constitution.
4) A Federal District judge just decided that the President has no authority to enforce the duly passed law of the United States, nor does Congress have any authority to revisit, amend, or repeal the laws of the United States. Short form, regardless of the law and the Constitution, judges rule with no limits backed by deadly force.
5) The decision can be appealed to the 9th Circuit Court of Appeals, which is akin to appealing to the DNC or to La Raza Unida. It can be appealed directly to the Supreme Court, however any appeal has the problem that Trump’s Attorney General is clinically comatose and the rest of the DOJ works for Obama still.
6) If there is no law and no Constitution, if there is no way that the American people have any input or control of the laws that can be enforced on them from above with the threat of force; what reason is there to obey those laws? Asking for a friend.
So what would happen if Trump merely ignored this judge?
It’s what he should do. In a public manner. Send a sharply worded letter stating- “How dare you order me to violate the Constitution! I’m not going to appeal your unlawful unconstitutional order, I’m going to ignore it like the garbage it is.”
I’d be loving watching liberal heads explode after that.
Also, it’s astonishing how much of this idiot judge’s ruling rests not on the law, but of irrelevant incidental facts to the case. How can we tolerate these judges just making it up as they go along?
Those judges theme song is that old tune of “Feelings, oh oh oh, just feelings…..”
Trump should just announce that he agrees with the court. Obama’s more expansive view of executive authority is clearly the correct view. And that Obama’s more expansive view extended to ignoring court rulings, which he will now emulate.
Josh Blackman wrote a piece about the case at NRO. It a tweet he says this ruling will be reversed 9-0.
Keep in mind that National Review worked and works for Hillary and the DNC. Nothing they say can be trusted. To get this through to the Supreme Court, it means the AG has to wake up, and that the Obama controlled DOJ will have to argue the case.
Big Sis strikes again.
Considering the Fifth Circuit Court of Appeals ruled DACA unconstitutional, how can a single judge order its continuation?
As we used to say in the Navy, it’s FM.
PFM- Pure F-ing Magic.
Stop right there. No, it didn’t. Your premise is incorrect, therefore so is your conclusion.
Who provides security for federal courts? If it’s the executive branch, I’d cease immediately if I were Trump.
Let the federal judges feel the full brunt of the effects of their preferred immigration policies. Whether at work or at home they are hiding behind armed federal officers, metal detectors, gated communities, the whole bit. If I were Trump I’d stop providing security for their ivory towers.
If the immigration policies they are inflicting on the rest of us are good things, they should enjoy them just exactly as we are enjoying them.
The US Marshals Service provide the security to the federal judiciary
The theatre of the absurd continues apace in the federal courts. Naked, self-congratulatory self-aggrandizement and blatantly partisan anti-Trump vitriol have replaced a respect for the law, facts and reason, as certain judges strut and preen for the “Resistance.”
This is utter farce, but, it is also utterly corrosive to our democracy, when judges begin acting as unabashed political partisans from the bench to effectively nullify the people’s will, as expressed through their duly-elected Executive.
Doesn’t jurisdiction still apply to Federal district courts? If so how can a district court judge ruling have effect outside his district i.e. nationally?
Did either party submit Trump’s tweets as evidence?
“…in a lawsuit brought by Janet Napolitano…”
On behalf of AZ, I apologize to the rest of the nation. I’m not sure why we keep doing this to you.
“The Supreme Court has reversed Judge Alsup’s outlandish rulings on DACA before. And it will do so again.”
It is a grave mistake to keep relying on the Supreme Court to save us. Not only are they unreliable (as in the execrable Obamacare opinion), but every appeal to them continues to cement their status as unelected tyrants of last resort.
The proper response to this should be for Trump to very publicly announce his administration’s intent to IGNORE the ruling. If some party (and I’m sure there are many) wants to take this to SCOTUS and force the issue, then three bodies will be put on trial for the ruling: the 9th Circuit, the President, and the Supreme Court itself.
Force the issue, or continue putting out fires forever.
I agree with this entirely, the federal judiciary has overwhelmingly demonstrated their inability to fulfil their mission of Judicial Oversight. They need to be ignored.
Hamilton wrote in FP #78 that the Judiciary was the weakest of the three branches, since it does not have the power of the purse nor does it control the military. The problem is that they’ve been expanding their powers over time and now they do seem to have final say over the budget and executive decisions. It’s a rogue branch of government now.
Waiting for the day when the President of the United States responds to unlawful court decrees like they did in the 19th century – “thanks for your opinion but I can read as well as you and I swore an oath to follow the Constitution, not your ridiculous interpretation of it.”
Nobody did that in the 19th century. Not even Jackson; he never uttered the lawless line that Horace Greeley put in his mouth.