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.”

Trump tweeted:

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?


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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