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Judicial Resistance: Another judge tells Trump he can’t end DACA on March 5

Judicial Resistance: Another judge tells Trump he can’t end DACA on March 5

A continuing pattern of usurping Executive Branch authority and substituting judicial policy preferences.

Earlier today I was reading Prof. Josh Blackman’s post responding to criticism he has received for using the term Judicial Resistance, On the Judicial Resistance:

Over the past year, I have discussed at some length the self-professed “legal resistance,” which has coordinated legal strategies to resist President Trump in the courts. This front is part of the broader #Resistance movement against President Trump in the political sphere. These actions are completely rational, and unsurprising from the party that (unexpectedly) lost the election….

Without question, I have been extremely critical of these judicial opinions, which I firmly believe are profoundly flawed. Yet, I work very hard to ground my opposition in substantive arguments (many of which are published on Lawfare), and not devolve into political barbs….

The clearest articulation of my views on the judicial resistance comes in an  that doesn’t even use the phrase. It develops three points that I’ve developed over-and-over again.

First, I have written at voluminous length that these judges have abandoned the traditional deference afforded to the President based on Trump’s conduct. That is, the presumption of regularity has been abandoned…

The consequence of this jurisprudence is that in effect, President Trump is disabled from exercising his own constitutional authority because of the circumstances in which he became president….

Second, courts have been motivated to reach out to resolve difficult constitutional questions when countless prudential barriers (standing, justiciability, constitutional avoidance, etc.), which would usually be adhered to, are ignored. In particular, the courts have shown no hesitation in ,…

Third, the courts have repeatedly questioned the president’s motivations as acting in bad faith, and doubted government lawyers who have offered legitimate reasons in court….

Read the entire post by Prof. Blackman, in which he explains that while he doesn’t claim bad faith by any judges, the result has been an abnormal judicial interference (my terminology).

Having covered many of the court decisions, particularly District Court decisions, which read in parts like political manifestos, I certainly agree that there is a judicial resistance to Trump.

We saw it in the travel order cases, and again in the January 2018 order from a San Francisco federal court judge order preventing Trump from ending DACA. 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.

DOJ sought direct review by the Supreme Court, a rarely granted process, without having to have the case determined initially by the 9th Circuit.

DOJ did not seek a stay, but did seek expedited Supreme Court review. The Supreme Court ordered expedited briefing, and will consider whether to accept the case this Friday during conference.

Expedited Supreme Court review would be timely because now a second federal District Court judge has barred Trump from terminating DACA on March 5. The decision is pretty much a carbon copy of logic as the San Francisco decision. Prof. Ruthann Robson describes the holding:

In a 55 page opinion in the consolidated cases of Vidal v. Nielsen and New York v. Trump, United States District Judge Nicholas Garaufis granted a preliminary injunction against the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood.

Recall that New York, joined by 15 other states and D.C. filed a complaint last September alleging the DACA rescission violated the constitution as well as being unlawful under the Administrative Procedure Act (APA). Judge Garaufis’s Order is based on a violation of the APA finding the rescission arbitrary and capricious based in part on the Attorney General Jefferson Sessions’s memo finding the DACA program unconstitutional.

After an extended analysis of Sessions’s Letter, Judge Garaufis writes

To the extent the decision to end the DAGA program was based on the Attorney General’s determination that the program is unconstitutional, that determination was legally erroneous, and the decision was therefore arbitrary and capricious. The court does not address whether the DACA program might be unconstitutional on grounds other than those identified by the Attorney General, as any such grounds are not fairly before the court.

As Prof. Robson describes, the preliminary injunction is fairly narrow, and actually allows the Trump administration the ability to terminate individual participation without limitation, quoting from the opinion:

This order does not hold that the rescission of DACA was unlawful. That question is for summary judgment, not motions for a preliminary injunction. Cf. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953) (“[A] preliminaiy injunction . . . is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness.”).

This order does not hold that Defendants may not rescind the DACA program. Even if the court ultimately finds that Defendants’ stated rationale for ending the DACA program was legally deficient, the ordinary remedy is for the court to remand the decision to DHS for reconsideration. On remand, DHS “might later, in the exercise of its lawful discretion, reach the same result for a different reason.

This order does not require Defendants to grant any particular DACA applications or renewal requests. Restoring the DACA program to the status quo as of September 4, 2017, does not mean that every DACA recipient who requests renewal of his or her deferred action and work authorization will receive it. The DACA program identified “criteria [that] should be satisfied before an individual is considered for an exercise of prosecutorial discretion.” (2012 DACA Memo at 1.) It did not require immigration officials to defer action against any individuals who met these criteria; to the contrary, the 2012 DACA Memo stated that DHS would exercise prosecutorial discretion “on an individual basis” and would not “provide any assurance that relief will be granted in all cases.” Preserving the status quo means only that Defendants must continue considering DACA applications and renewal requests, not that they must grant all such applications and requests. This order does not prevent Defendants’ from revoking individual DACA recipients’ deferred action or work authorization. Under the 2012 DACA Memo, DHS may terminate a DACA recipient’s deferred action “at any time, with or without a Notice of Intent to Terminate, at [its] discretion.” Maintaining the status quo does nothing to alter that.

In following the Twitter response to the decision, I saw this from last fall, a criticism of this judge’s comments during oral argument by Jeff Sessions during an October 2017 Heritage Foundation speech (emphasis added):

But that brings me to a final point: how we preserve our rights. Our rights are best preserved by the structure of the Constitution the Founders established—most importantly the separation of powers. Co-equal branches of government ought to respect one another as co-equal branches.

As you all know well, some judges have failed to respect our representatives and Congress and the Executive Branch. One particularly striking example was the federal judge in Brooklyn who heard argument on a challenge to the federal government’s wind down of DACA.

That is a straightforward question of law. But rather than address that question, the court said the government “can’t come into court to espouse a position that is heartless.” Not unlawful, but “heartless.”

With respect: it is emphatically not the province or duty of courts to say whether a policy is compassionate. That is for the people and our elected representatives to decide. The court’s role is to say what the law is.

A judge’s comments on policy like this are highly offensive, and disrespectful of the Legislative and Executive Branches. Judges have the solemn responsibility to examine the law impartially. The Judiciary is not a superior or policy-setting branch. It is co-equal. Those who ignore this duty and follow their own policy views erode the rule of law and create bad precedents and, importantly, undermine the public respect necessary for the courts to function properly.

This is especially problematic when district courts take the dramatic step of issuing activist nationwide injunctions—orders that block the entire United States government from enforcing a statute or a presidential policy nationwide. Scholars have not found a single example of any judge issuing this type of extreme remedy before the 1960s. But today, more and more judges are issuing these lawless nationwide injunctions and in effect single judges are making themselves super-legislators for the entire United States. We have nearly 600 federal district judges in the United States—each with the ability to issue one of these overreaching nationwide orders.

That makes the need for judges to stick to the law even more important. A single judge’s decision to enjoin the entire federal government from acting is an extreme step, and too often, district courts are doing it without following the law. Exercising this awesome power because of a political disagreement is all the more unacceptable. The Constitution gives judges no right to veto a President’s actions because they disagree with him on policy grounds.

What Sessions was lamenting is the essence of the judicial resistance to Trump. Hopefully the Supreme Court will put an end to it in the travel order and DACA cases, and others.


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There has to come a point where a judge is clearly ultra vires, and rather than appeal an order the president notifies the SCOTUS, as a courtesy, that one of the judges under its supervision has exceeded his/her authority by issuing an invalid order and needs to be disciplined.

    Gremlin1974 in reply to Milhouse. | February 14, 2018 at 2:42 am


    Aarradin in reply to Milhouse. | February 14, 2018 at 3:51 am

    Wow, first time for everything, I guess.

    I take back 7% of the things I’ve said about you.

    Brilliant post.

      artichoke in reply to Aarradin. | February 14, 2018 at 7:32 am

      I think it’s a legal trap. That would be the least effective way to fight against the rogue judge and the most likely way to get SCOTUS to actually say the President can’t decide the judge’s authority.

      Milhouse is usually wrong but he’s clever.

        Matt_SE in reply to artichoke. | February 14, 2018 at 10:24 am

        1) It doesn’t matter if the left plans this as a trap. At some point, the people are going to have to decide who rules in this country: our elected representatives or a bunch of lawyers in robes.

        2) Like so many other Democrat “traps,” they may be sorry they tried to spring it on Trump. The FBI/DoJ conspiracy is taking down the FBI/DoJ instead of Trump. The Hillary/Obama scandals are now coming home to roost on *them* instead of Trump.

        3) If this isn’t resolved by discussion, at some point judges are going to start being assassinated. People will not be argued into slavery. It is preferable to avoid that.

        Aarradin in reply to artichoke. | February 15, 2018 at 2:11 am

        I’ve always thought the appropriate response would be Impeachment of judges that are blatantly usurping the functions of either the legislature or the executive.

        Problem there is that while you can sometimes win in the House, you’ll never convict in the Senate. At least not while the Democrat Party continue to exist. Would be a nice slap in the face though.

        Another downside is the D’s would start impeaching any judge that upholds the Constitution when doing so gets in the way of their latest bizarro ideological agenda item that they can’t get people to vote for.

    Virginia42 in reply to Milhouse. | February 14, 2018 at 7:20 am

    I hope Trump goes Andrew Jackson and just does what he must do and dare them to do something about it. They have no legal grounds for this nonsense.

    artichoke in reply to Milhouse. | February 14, 2018 at 7:31 am

    This makes sense to me, but in this case it might not be strategic. What could happen is that SCOTUS leftists have an obvious try to bat that back, with SCOTUS telling the President that SCOTUS, not the Executive, decides that authority.

    And so while originally I thought I agreed for about the first time with Milhouse, now I think it would be a trap.

    What other presidents have done is simply to ignore unwanted orders. Let the court try to enforce it or get SCOTUS to order that. That’s harder than taking up the new issue Milhouse would have the Executive raise.

      The Packetman in reply to artichoke. | February 14, 2018 at 7:56 am

      To be fair, Milhouse isn’t suggesting that SCOTUS take up a new issue, he said that the president should ‘inform’ SCOTUS as a courtesy … not ‘ask’ them.

      Think Andrew Jackson with manners …

    neanderthal in reply to Milhouse. | February 14, 2018 at 12:52 pm

    There badly needs to be some sort of mechanism for cutting short this notion of judicial supremacy, where basically any judge at all can freely override any law or executive action by finding some pretext to declare it unconstitutional. Some of those pretexts are very pretentious indeed.

    But if we give a president too much power to ignore judges, we’ll wind up with the same kind of executive actions that Obama often pushed through being allowed to stand, no matter how much they violate the First Amendment. In fact, the left routinely ignores religiously-based objections in their hyper-regulatory wet dreams, so I certainly don’t want to see leftist presidents given a freer hand to regulate without consequence.

    It seems to me we need some sort of restrictions on the power of judges in general that can rule in the over-adventurous without preventing them from their proper role. Congress has the power to define the jurisdiction of federal courts, so perhaps they need to consider some legislation to ensure that a judge is not just implementing his preferred policy rather than respecting the role of Congress and the President.

    But if we could enforce that kind of rule, we wouldn’t have abortion on demand now, or same sex “marriage,” or the various forms of mischief around transgender theory. It’s hard to come up with a rule that a sufficiently determined judge can’t maneuver around.

      Disco Stu_ in reply to neanderthal. | February 15, 2018 at 5:19 pm

      Suggest we also include term limits for all federal judges in the Article V Convention of States proposed Constitutional amendments.

      Okay, 2 years is proably too brief; probably. I’d like to suggest no more than 10 years with any particular court – including the Supreme Court.

      I suppose they can keep their lifetime appointments, just move on elsewhere – diluting their pretensions to power – after 10 years.

Subotai Bahadur | February 13, 2018 at 10:02 pm

There is also a point where there is no law, because the Left is not bound by any statute and the Right is not protected by the Constitution.

There will be untidiness. For now, one has to assume that we are approaching [at warp speed] the point where will be apparent that judges appointed by Democrats and GOPe Republicans take their orders and make their rulings solely based on whatever helps the Left.

What one’s obligation is to obey those rulings is, to put it mildly, a questionable matter. What legitimacy is there for those who try to enforce those rulings over opposition?


    Yeah what happens to a country when the judiciary is discredited. Trump is doing things absolutely formally to try to avoid that chaos. Let’s hope he can succeed that way and things can stay like this, because one way or another these rogue judges are NOT going to make foreign policy or immigration policy.

Constraint is tossed. Checks and balances are no longer based on law but on Party orthodoxy. All of this .. now… is to compromise the Executive while recently in the past to expedite (and cover for) it.

The Left has rendered the Executive neutered when it wishes. Not only is the Constitution a “living” (and thus dying) old document, but the Courts have expanded this flexibility to any situation.

Of my greatest concern is that we are beyond a tipping point of responsibility by those in power into lawfare. There is no desire to pull back. Are we not in a judicial form of the dictorship of the proliteriat?

Note once again the very peculiar reasoning: Of course the President can cancel DACA if he wants to, but I the judge don’t believe he really wants to, because he’s said he doesn’t want to deport the DREAMers. He’s only doing it because he got bad legal advice. How do I know the advice was bad? Because I’m a judge, so I’m always right. So now I’m giving the President my legal advice that he doesn’t have to cancel DACA, and therefore since he doesn’t want to he’s not allowed to.

The obvious retort is that you are not the President’s lawyer. He has lawyers, he pays them plenty, and he’s entitled to rely on their opinions rather than yours. The fact that you wear a robe and they don’t doesn’t make your opinion worth more, except when a case is actually before you, which the legality of DACA is not.

As I’ve pointed out before, one of the many problems with this is that it amounts to issuing an advisory opinion, which courts have no right to do.

    Time for straightforward defiance by the admin if SCOTUS doesn’t slap this jerk down by 5 March. Just let the petty tyrant judge try to enforce his patently absurd ruling, contempt threats be damned.

      J Motes in reply to Daiwa. | February 14, 2018 at 4:13 am

      Agree, in principle. However, Dems would undoubtedly consider defiance of any Court ruling to be an impeachable offense and would start yet another long-drawn-out investigation and trial that would hobble Trump’s ability to devote full attention to his real duties, much as the Mueller investigation has been doing for the past year.

      I have long assumed that Trump has shown restraint in putting judges in their place because of, at least in part, the impeachment potential — and that he has some plan in effect to counter inappropriate judicial decisions. So far, he has fought them through the conventional legal process. IIRC, the Supreme Court ruled that Obama’s DACA policy was illegal and not within his Constitutional powers; Trump is attempting to reverse an illegal act and move the DACA issue into Congress where it actually belongs. He may therefore believe that his legal arguments on this issue will win the day; the lower court judges are just pesky mosquitoes in comparison with the dragons and monsters he must fight elsewhere. In contrast, he engages in open combat with the media and Congress because that approach has been proving to be the most effective tactic with them.

        Milhouse in reply to J Motes. | February 14, 2018 at 1:23 pm

        How could an investigation into this be drawn out? There’d be no dispute about the facts, so no need for any investigation. Bring on the articles of impeachment, and vote. If it passes you go straight to the senate for trial and acquittal. There’s no chance the senate would convict, not for this. But either way it could be done within a few weeks, if not a few days.

          It *could* be done in a few days. *If* it were not an opportunity for the worst windbags to preen in front of TV cameras and bloviate about how the rule of law is threatened, and only the swift and immediate action of the House/Senate can possibly bring the country back from the desolate wasteland that it would soon become, and bring balance to the force. Oh, and rescue the women, children, and minorities which will be hardest hit.

I have written at voluminous length

You can’t write at “voluminous length” any more than you can pour a slab using three yards of concrete.

“You can rationalize anything.”

I learned that in law school, as an unintended but powerful lesson.

This is a case-in-point; an action by one POTUS…plainly and by his onw confession outside the law…cannot be countermanded by another POTUS.

It seems to make no sense…because it is nonsense.

JusticeDelivered | February 14, 2018 at 8:16 am

Could a judge who makes these rulings be impeached, and removed for doing so? Taking such an action would probably temper the likelihood of further attempts to interfere with executive actions.

Dragging one or two judges through such, even if it is no successful, would probably end the problem. Consider it the equivalent of a judicial SLAPP action.

    Subotai Bahadur in reply to JusticeDelivered. | February 14, 2018 at 4:35 pm

    Keep in mind that while Congress is technically in Republican hands, in fact it is the UniParty, and most Republicans in Congress would like nothing better than to impeach Trump if they thought that they could get away with it. And they think that they can get away with almost anything.

    When judges attack Trump and anything the Deplorables want, the Republicans in Congress love it. There will be no impeachment of judges.

OUR President should do what OBozo did when he faced opposition from the GOP ,, do what he wants bypassing Congress and the Courts. Give them the Bird !!

From Josh Blackman

In a recent speech, Justice Gorsuch offered some important words of wisdom for the rest of the judiciary: “Judges should wear robes,” he explained, “not capes.” Only the political process, and not what was designed to be the least dangerous branch, can save us from the consequences of our own decisions.

We are living in a time where someone wearing the wrong shoes gets more press than this issue.. I am terrified..

WAIT. Let me get this straight:

DHS would exercise prosecutorial discretion “on an individual basis” and would not “provide any assurance that relief will be granted in all cases.” Preserving the status quo means only that Defendants must continue considering DACA applications and renewal requests, not that they must grant all such applications and requests.

Since WHEN does a JUDGE get to order the PROSECUTION to consider ANY instance of “prosecutorial discretion?” Prosecutorial Discretion, is by it’s VERY DEFINITION absolute. Period. End of sentence.

This order does not prevent Defendants’ from revoking individual DACA recipients’ deferred action or work authorization. Under the 2012 DACA Memo, DHS may terminate a DACA recipient’s deferred action “at any time, with or without a Notice of Intent to Terminate, at [its] discretion.” Maintaining the status quo does nothing to alter that.

So, it’s not that the JUDGE thought that DHS can’t terminate individual DACA recipients for ANY reason what-so-ever, it’s that the “reason” was that DHS thinks the program is Unconstitutional, and therefore is ending the program.

A program that is, by it’s very definition an absolute discretion of the prosecutors of the department.

This Judge should be laughed off the bench for stupidity.

regulus arcturus | February 14, 2018 at 10:03 am

This has gone beyond simple resistance. Actions of this judge fall well outside of any legal boundaries, and must be punished.

It is legally nonsensical to argue that an action enacting DACA is allowable, but reversal of that exact same action is not, especially when a prior ruling deemed the initial action unconstitutional.

Here is Benjamin Witless discussing such a judicial resistance prior to the election –

Time to punish #Resistance judges.

    Thanks for link! Lawfare saw Trump as the devil personified and the need for a moral crusade to gum up the works. But this has played out with not only willing lawyers but willing judges. Checks and balances are only about bank accounts. The question that can never be asked because it doesn’t exist… “what if the Left is totally wrong on this?”

“Feelings, nothing more than feelings….”. The mantra of liberal jurisprudence.

Once again, let met espouse my personal theory on judicial decisions. If the decision runs more than 10 pages, it is most likely highly flawed legal BS.

Two of my favorite decisions were Heller and McDonald v Chicago. In both cases, the decision could have been about three pages. After recapping the positions of the plaintiffs, the decision should have simply read that the wording of the 2nd Amendment precludes any regulation of a person’s ability to own or possess [carry] a firearm or other weapon. And, in McDonald, the decision should have simply stated that the 14th Amendment applies the wording of the 2nd Amendment to state and local governments. Instead, the SCOTUS took a ream of paper to rewrite the 2nd Amendment to allow for exceptions which appear nowhere within that Amendment.

These DACA and immigration decisions are no different. reams of paper are being used to justify a judicial position which simply does not exists, legally.

Obama says he doesn’t have authority to do it. He does it. He boasts of changing the law.

Some could argue that he has the “discretion” to say he won’t deport any of the kids here through no fault of his own. You might say it’s a bit expansive to use discretion to allow 1.8 MILLION to stay, but at least there’s an argument to be made for it.

What he clearly did not have is the authority to create a whole new class of immigrants not provided for by the US Code (i.e. Congress) and to also then turn around and grant them benefits of being here legally. He in essence said not only am I not going to prosecute a law that was broken but I’ll wave my magic wand and make it so that they never broke the law in the first place.

All done by executive fiat. AGAINST the will of Congress since they had refused to act even when the Dems controlled everything in DC.

And now this “judge” (and I use the term loosely) comes back and says the President can’t reverse prosecutorial discretion for the whole class of people but instead must apply it on a case by case basis. And that he can’t undo an illegal executive order because, heartless??

Up is down, right is left, wrong is right…

No, no, no, Ragspierre and Milhouse have made sense at times in the past. You got to give the devil his due.