US Supreme Court will not allow Trump to bypass 9th Circuit in DACA case
Extraordinary procedure, which is rarely granted, denied, so trial court order preventing Trump from ending DACA remains in force, for now.
We previously reported that the Trump administration took the unusual step of trying to get the Supreme Court to hear the case of the San Francisco federal district court order preventing Trump from ending DACA without getting a ruling first from the 9th Circuit.
What made the procedure confounding, is that the administration did not seek a stay from the 9th Circuit and then the Supreme Court, only expedited direct Supreme Court review on the merits. That direct review procedure is rarely granted. At the same time, the administration filed an appeal in the 9th Circuit.
The San Francisco district court injunction is 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.
It’s reflective of Judicial Resistance to Trump, which resulted in a second district court issuing an injunction against ending DACA, Judicial Resistance: Another judge tells Trump he can’t end DACA on March 5.
The administration needed to get this before the Supreme Court, but it chose a bizarre way of doing so, which may have played the politics of it too cute. We covered this strange tactic in Trump admin files for Supreme Court review of DACA case, but does not seek emergency stay:
How does this tactic make sense considering the Supreme Court already issues a stay of a lower court decision in this very same case, and on multiple occasions issued stays as to lower court overreach on Trump travel orders?
The best I can surmise is that Trump doesn’t want to win right now, or lose right now, he wants a DACA deal. By putting the case on a fast track, but not seeking an immediate stay, Trump keeps a DACA deal on the table.
When the Supreme Court ordered expedited briefing as to whether it would take the case, many people read this as a sign that this might be the exception to the rule against such a procedure. But it’s not to be.
The Supreme Court has declined to hear the case. So we now wait for the 9th Circuit to rule, and can expect a motion there for a stay of the lower court ruling. In its order declining to hear the case now, the Supreme Court commented that it expected the 9th Circuit to decide the case expeditiously:
17-1003 DEPT. OF HOMELAND SEC., ET AL. V. REGENTS OF UNIV. OF CA, ET AL.
The petition for a writ of certiorari before judgment is denied without prejudice. It is assumed that the Court of Appeals will proceed expeditiously to decide this case.
It seems likely the Supreme Court will eventually take the case, as reflected in the words “without prejudice” in the denial. But this legal blunder by the administration lawyers delays that day, and certainly now changes the dynamic politically on a DACA deal.
Needless to say, supporters of DACA are painting this as a substantive decision, even though it is not. It’s the result of a strange tactical decision that has backfired. Of course, Trump is likely to lose in the 9th Circuit, so waiting for a 9th Circuit decision (at least on a stay request) likely was futile, but it’s the normal course.
[This post has been updated multiple times.]
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Comments
If anyone at the DOJ had a cellphone they could call a competent attorney to advise.
how can ANY court force ANY POTUS to carry out an unlawful order.
the DACA order was NOT voted and confirmed by Congress.
since when are we governed by autocrats sitting on a bench ?
Since as long as I can remember, unfortunately.
Time to Impeach those Old Queens on the Court.
Not to mention Ginsberg, Sotomayor, and Kagan.
I”m praying some of them get removed by God.
Since as long as people tolerate it. Trump should ignore and proceed as he intended!
To borrow from Stalin: How many divisions does SCOTUS have?
Your hero worship of a leftist mass murderer is showing.
Aren’t they holding the hearing to determine what you claim is already been determined?
When you write of “the Administration” you really mean the Recuser’s DOJ, still controlled by Obama hold overs.
Well…
1. bullshit, and
2. how does that address the Supreme’s procedural decision?
It seems to me that all Trump has to do, if he really wants to end DACA, is to reissue his order, this time not citing the legal advice that the program is illegal, but simply saying “it is my policy that action on these cases no longer be deferred”. Both judges who enjoined the cancellation agreed that the President does have the authority to end the program if that is really his policy, so let him say it now is. If it really is, that is.
I suspect that both you and the judges are correct in your analysis that he doesn’t really want to end it, he only wants to be seen trying to end it, and is therefore choosing methods that he knows will eventually fail, but will serve to drag it out.
Republicans need issues this fall to get their voters enthused and make sure they turn out. Fears of gun confiscation and judicially mandated open immigration will fill the bill very nicely.
I’d rather keep to the established procedures. In the meantime, DJT can ignore the lower court order. That creates the “case or controversy.”
2 issues:
1. Trump could just ignore the 9th Circus. Eventually that will happen, especially if SCOTUS doesn’t rein them in.
2. Tactically, this actually helps Trump in that he now must wait for the 9th ruling, and then the normal appeal process, which will take even longer, giving him (and Congress) extra time to come up with a solution.
The fact that the SC denied this is very alarming, however, as it signals they are willing to allow lawlessness of rogue courts to continue.
The appeal has nothing to do with any Trump actions, which were response to 9th Circus fraudulence.
It could simply be that with Kennedy thinking of retirement, he may have said he doesn’t want to deal with the issue anymore. The 4 libs would rule against Trump no matter the issue, no matter the reason, and the remaining 4 could easily have decided that there’s no point in fighting the other 5 at this time.
And that gets you to a unanimous ruling not to hear this case early.
If Kennedy doesn’t want to “deal” with anything, then he shouldn’t be on the court and must resign.
This does potentially hurt Trump in that he can no longer threaten to deport people on March 5, but I believe he will use the extra time to come up with a workable solution, now that he has effectively stolen the issue from the D’s.
“If Kennedy doesn’t want to “deal” with anything, then he shouldn’t be on the court and must resign.”
Rumors abound that he’s about to, at the end of the current session.
RBG, on the other hand, swears that she will hold onto her seat and vote for the Far Left in every decision she can be part of til the day she dies.
…then she’ll be buried in Chicago…
Sure he can. DACA doesn’t actually prevent a person from being deported if ICE wishes to do so. It certainly doesn’t prevent it if the president wishes to do so.
If he does, then he is ignoring the lower court rulings.
No he wouldn’t be. No court has ever ordered him not to deport DACA holders.
Wrong again. DACA prevents deportation of these individuals. If DACA is still in effect, they cannot legally be deported in the view of the lower courts opposing Trump’s ending of the program.
I keep trying to inform you, and yet you persist in your completely unnecessary ignorance. No, DACA does not prevent anyone’s deportation. If ICE wants to deport someone, and certainly if the President wants to, they have all the authority they need. The DACA card will not protect the person at all.
Entirely wrong.
DACA prevents deportation for covered individuals.
You are ignorant.
I don’t find the SCOTUS’ denial the least bit alarming. Had they ruled against POTUS on the underlying issue, that would be a terrible precedent. But all they did was say we’re not going to let Trump shortcut the process this time. This is an indication that they believe the ramifications of their decision are not going to cause an undue burden on those who might be hurt by the continuance of the current policy. That’s subjective, of course, but I tend to agree with them. Until we start giving dreamers citizenship, there is nothing being done that cannot be undone other than the cost of the current policy in dollars and lives. The fact that we’re 13 months into the Trump administration before he plans to discontinue the program makes it difficult to argue that a delay is unbearable.
Of course, DACA was an unconstitutional, illegal, unilateral executive mandate which should never have happened in the first place. My opinion about the SCOTUS decision is not based upon my personal feelings about DACA.
In so doing, SC tacitly endorsed the 9th Circus’ ludicrous assertion that EO’s cannot be undone by EO, and that DACA is outside of executive authority, even though it was enacted by the executive.
Yes, there is an appellate process, but the 9th Circus has shown zero inclination to follow either it, or the law, and must be addressed accordingly.
In this situation, as Professor Jacobson notes above, it would have been appropriate to make this process exception, given the lawless actions which prompted it.
Not really. The SC can see some value in due process, even if the 9th doesn’t.
Disagree.
Were that the case, then the 9th would have been disciplined long ago.
Neither the 9th circuit nor any judge in that circuit has made any such assertion.
Nor that one.
They have made both.
The 9th has made multiple improper rulings against President Trump with respect to immigration.
You are extremely ignorant.
The 9th has made multiple improper rulings about a lot of things over the years, but neither it nor any judge under its supervision has ever ruled that EOs cannot be undone by EO, or that DACA is outside of executive authority.
RA, that’s BS. When has the 9th ruled on DACA?
Wrong. More specifically, they have ruled (and will rule again in this matter) that Trump has no ability to exercise constitutionally granted executive authority on immigration.
So in your opinion Trump could just end DACA with the stroke of a pen and start deporting DACA registrants?
If so, then I am confused by this judge’s opinion:
““The question before the court is thus not whether [White House officials] could end the DACA program, but whether they offered legally adequate reasons for doing so,” Judge Garaufis wrote.”
Which sounds as if the court is saying that Trump must offer an acceptable legal justification to end an EO. To say that the president can end an EO as long as the courts approve seems to mean that Trump could not end DACA with the stroke of a pen (assuming he doesn’t simply tell the judiciary that it is not their fricking business and end the program anyway).
The president as head of the executive branch may fully exercise his powers to end directives enacted by executive order, especially those already found to be legally questionable.
Were he prevented in exercising this reverse authority, we would have a set of Eos which after enacted could never be repealed, which makes zero procedural and constitutional sense.
Regulus you are wrong and apparently ineducable. What you claim has happened simply hasn’t, but you refuse to educate yourself or to listen to anyone more informed than you, so you will persist in your ignorance forever.
Iconotastic, you got the opinion exactly backwards. The US government (which is to say the president) can’t do anything without a legally adequate reason. Regardless of how exclusive his authority is on any topic, he may not exercise it arbitrarily or capriciously. That includes his obvious and undisputed authority to cancel things his predecessor did.
Obama’s DACA order, whatever its flaws, was neither arbitrary nor capricious. It implemented a policy that he sincerely held, and that he’d articulated many times. Had Trump held the opposite policy, and therefore ordered it reversed, nobody disputes that he could have done that. The problem stems entirely from his repeated statements that he doesn’t want to end DACA but was forced to because it’s illegal.
The two judges who enjoined the cancellation offered their legal opinions that the President’s lawyers are wrong, DACA is legal, therefore the President doesn’t have to cancel it, and therefore his decision to cancel it anyway had no reason and was made arbitrarily. This is ridiculous legal reasoning, and in my opinion the President shouldn’t be appealing these injunctions, he should simply announce that he regards them as ultra vires and will be ignoring them, but it is what it is, and if you don’t understand it you can’t intelligently discuss it. Hence Regulus.
Flatly wrong, and it is you who are apparently illiterate, and extremely ignorant as always Milhouse.
We already know how the 9th Circus will rule in this case without the proceeding occurring.
Requiring that element to occur is purely symbolic in this instance, and Trump would be well within his rights, given the 9ths insubordination and illegality, to simply ignore any pronouncements they (and arguably any other appellate circuits) make.
We are past the point of no return on judicial lawlessness, and until you understand how damaged the judicial system has become under leftists, you will fail to understand the legal landscape.
The 9th hasn’t even gotten involved in this matter yet. Are you suggesting the SCOTUS is obligated to let the Administration bypass the circuit court to show them what for as a punishment for other dumb crap the circuit court has pulled in the past? That’s not the most rational argument I’ve heard recently. Are you one of those Trump haters that wants to make this decision by the SC into a bigger deal than it actually is?
That is exactly what I am suggesting.
Given the 9th’s well established track record of malfeasance, it is both unethical and likely illegal to allow them to continue to thwart the exercise of constitutional powers.
That is why Trump went straight to the SC. Ultimately, the 9th Circus is their responsibility, and they have demonstrated beyond any doubt that they cannot discharge their duties without corruption and prejudice.
If the 9th (and other circuits) refuse to adhere to the established system, then they will not be afforded procedural deference.
You make the sounds like it’s Trump’s decision whether the 9th gets to play. We are fans of the separation of powers, are we not? SCOTUS makes that call, and they did, and there’s nothing extraordinary about their decision, other than the nature of the request.
So what if the 9th is a rubber stamp for lefty loon judges? If SCOTUS decides that a circuit has become corrupt, they have remedies for that. The fact that they have not is probably more a reflection of the balance of the court than a condemnation of the institution. Be patient and wait for the 9th to weigh in. SC gave them the nudge that they should handle it expeditiously. If they do rubber stamp, the SCOTUS will have the ball.
The 9th is making it their decision whether Trump gets to exercise his constitutional rights.
That’s not their call.
The SC, including with this action, seems hesitant if not downright opposed to using their remedies.
Trump needs to put both the SC and the 9th on notice.
The 9th needs to be removed from the appellate process entirely, and every effort should be made to bypass them at every opportunity.
Actually it is their call. If and when they call it wrong, it then becomes the Supreme Court’s call to reverse them yet again. But not before. The SC did tell the 9th to get on with its (likely wrong) decision so it could be reversed expeditiously.
No it is not their call.
They have demonstrated their inability to perform judicial review legally, and have been acting extra (il)legally.
That nullifies any role they may have previously had in the appellate process.
They must be thinking of that March 6 EXPIRATION DATE!
It’s not at all alarming. There was only ever the tiniest chance they were ever going to grant this extraordinary measure, and you had no right to expect they would. Trump almost certainly expected it not to be granted, but tried it anyway just in case. Probably, as both Prof Jacobson and two federal judges have said, because he doesn’t really want to end DACA just yet.
Milhouse attempting to push the idiocy envelope again
There was every expectation in a lawful system of adjudication that SC would make a process exception to stave off additional process abuses by the lower courts.
When it gets out of hand, which it has, you discipline the children.
You seem to have forgotten that (maybe you never knew it?).
Asserting that Trump doesn’t want to end DACA is ignorant in the face of his order to do so (issue at hand here), his many statements on illegal immigration, and his stance on other related aspects including a wall to prevent such illegal immigration.
You’re quite oblivious to miss all of those elements.
On the contrary, he has made many statements showing that he doesn’t want to deport these people. His order to end the program explicitly said it was not because he wanted to but because he’d received legal advice that he had to.
No. He has repeatedly stated that he wants them (“illegals”) out. He has softened his stance slightly.
The reason he had to end DACA was because Obama illegally enacted it by EO. That does not override any of his previous statements, but enhances them.
Get a clue.
Now you’re just lying. He has repeatedly said that he does not want them out. That he believes he had to end DACA because it’s illegal is precisely the problem. The judges who enjoined the cancellation believe it’s not illegal, and therefore his belief that he had to end it is wrong.
Their error is twofold: (1) Courts are not allowed to give legal advice; (2) Their legal opinion (when acting as lawyers rather than judges) is no more authoritative than that of the President’s lawyers, and the President is entitled to rely on his lawyers’ advice rather than on theirs.
Actually I think there’s another error: the rule that government may not act arbitrarily or capriciously is not total. Most government actions, including Acts of Congress, are reviewable under that standard, but some are not, including prosecutorial discretion, which is the purported basis for DACA. The dispute over DACA’s legality basically rests on the question of whether it is or is not an exercise in prosecutorial discretion. By its own terms DACA claims that it is, and therefore is not reviewable; without that claim it would be clearly illegal. But if it is an exercise in prosecutorial discretion, then it follows that canceling it is also one, and therefore not reviewable. Catch 22; either way the cancellation must be upheld.
Completely false, and you are lying (as usual).
Trump has made repeated statements that he does not want 12 million illegals instantly naturalized, but is willing to accept a limited number of DACA recipients.
This is not debatable.
Neither is the premise that actions initiated by executive order may be rescinded. Arguing otherwise is legally nonsensical.
The best I can surmise is that Trump doesn’t want to win right now, or lose right now, he wants a DACA deal.
That’s your residual TDS showing.
Trump doesn’t want DACA. Or, more accurately, there’s little serious indication that he mistakes it for a worthwhile goal in itself. He wants funding for a wall, he wants an end to chain migration, he wants to kill the diversity lottery. He’s made that pretty clear—no guesswork or reading-between-the-lines is needed.
A legal DACA is a price he seems willing to pay to get all that. He’s made that pretty clear as well. That doesn’t imply that he considers DACA a goal, or that he’s willing to give it to the D’rats as a gift.
DACA is a chip Trump tossed into the pot to entice the D’rats to play a game. The game isn’t about winning a single chip, it’s about winning the pot.
Because the other player in the game is Congress, play will be v e r y slow. The spectators will start fidgeting and shuffling their feet. But that doesn’t affect play at all. The only way Congress can play is slow. Anything too fast and they’ll miss it cleanly … which for the President means no win on wall/chains/lotteries.
TOUCHE! WELL PUT!
In the meantime the DemoRats are eating each other alive!
Wow, oh wow. Just look at this!
“Dianne Feinstein No Longer Left-Wing Enough for California”
“The grass-roots Democratic activists gathered at the party’s annual convention in San Diego this weekend implicitly rebuked the state’s senior U.S. senator by denying her the party’s endorsement for her re-election bid.Feinstein finished far behind de León, the top Democrat in the state Senate.”
“This is a woman who was once mayor of San Francisco, who has argued for the confiscation of guns from law-abiding gun owners, and whose lifetime ACU rating is under 10%. (Meaning she has voted conservatively less than 10% of the time.)
But Kevin de Leon is an even bigger anti-gun zealot, a man so far left he introduced environmental regulation so radical (banning all fossil fuels in California) not even the hard-left Democrat legislature would go for it….
http://www.gaypatriot.net/2018/02/26/dianne-feinstein-no-longer-left-wing-enough-for-california/#comments
It’s going to be entertaining to watch DiFi fight for her political life and see how much of her own money she’s going to spend to do it.
I realize the net result doesn’t change, (two Dem Senators for California regardless), but it may be entertaining to watch Thirty-Caliber Clip and Kamala Harris try to sell More Radical to the rest of the country.
So let’s say Trump were to shut down DACA on 3/5 and proceed to send all the chittlins home, along with their entourage. Now he is down a bargaining chip, because he’s not going to re-EO DACA under any circumstances, and the legislature will never get DACA out of the Senate if the Senate won’t even take it up.
What does Trump have to entice a handful of Dems to authorize funding for a wall? Mitch isn’t going to bust this filibuster.
Americans held hostage at the end of a gavel. This is similar to Democrats holding America hostage while Pelosi threatened people with a novelty, oversized gavel.
Trump needs to forget about the San Francisco federal court and start deporting illegal kids the day after the 6-month grace period (which is still unconstitutional) ends. Dems will start begging for a wall to stop them. He needs to remind those little courts they have no power over his Administration.
Nothing in any court order prevents any of them from being deported, should the President wish it. They’re not being deported now because he doesn’t want it, and they won’t be deported after the deadline because he still doesn’t want it.
Appellate courts don’t want to encourage interlocutory appeals because who wants extra work.
Re: Remark of Humphrey’s Executor:
You made me chuckle.
Thx.
Hmmm! Suppose, arguendo, that President Obama, after issuing his DACA executive order, had decided to terminate it on the ground that he now believed he lacked the constitutional authority to issue it and that the matter should be decided by Congress afterall. Could the Federal District Court in San Francisco have then ruled, in an action brought by Dreamers, that President Obama lacked the authority to terminate his own executive order?
The court didn’t say the president can’t terminate an executive order, whether his own or his predecessor’s. It said (as did the court in MD) that he can’t do so on the basis of (what it characterizes as) faulty legal advice. He can certainly do so if he disagrees with it as a matter of policy.
Re: Milhouse
Not a dime’s worth of difference. These federal courts are usurping the president’s role, and should be impeached!
Enough of this sophistry by the federal courts!!!
Or, you know, remove their jurisdiction to decide issues concerning POTUS E.O.s. However their ursurpations can be ended!
It matters to get things right. When you reason from false premises, as Guahan does, you reach wrong conclusions.
Wrong.
It matters that lower courts have been acting improperly/illegally, and should be removed from the process where appropriate.
The Supreme Court can’t let litigants skip over steps in the process unless there is a really really good reason. The fact that the Trump Administration may end up to be right on the underlying merits of the appeal doesn’t change that procedural concept. Letting the DACA program linger on a few more months while the appeals process plays out isn’t anything different from any other situation on appeal where the trial level judge made a wrong ruling.
Re: Marco100
POTUS and not SCOTUS has these responsibilities, for very clear reasons.
For example, we know these illegal aliens are murdering Americans. It’s POTUS’s job to protect Americans. SCOTUS, not so much.
So, who is going to the funeral of the American murdered by an illegal alien today? Tomorrow? Next week?
Or who went to the funerals of these five Americans killed by an illegal alien from Vietnam? Murdered with a HAMMER.
SCOTUS can be irresponsible on their own dime, not on Americans’.
http://www.breitbart.com/california/2017/12/12/violent-illegal-alien-convicted-of-slaughtering-immigrant-family-after-2006-failed-deportation/
President Trump should declare that district court can’t enjoin executive outside it’s territorial limits and will not be followed outside of such territory.
Another tactic would be to have a state like Texas file a lawsuit in a federal court in Texas seeking a ruling that California district court order may not be enforced against executive in Texas because that order harms state of Texas and it’s citizens and exceeds the proper reach of the California district court.
It wasn’t a California court that enjoined the Administration. It was a federal court.
Yes. I know that.
In some poker games it is advantageous to let the deep pocketed lesser players extract each others chips, till they have almost nothing left, and the chips are left in the hands of the worst players by means of subtle influencing by the adept players. And then, when the pockets are emptied, and the chip pile is held by a weaker player, then the adepts come in to duke it out, head to head. Clearing the table.
In some poker games it is advantageous to let the deep pocketed lesser players extract each others chips, till they have almost nothing left, and the chips are left in the hands of the worst players by means of subtle influencing by the adept players. And then, when the pockets are emptied, and the chip pile is held by a weaker player, then the adepts come in to duke it out, head to head. Clearing the table.
New order should recognize that the work permits were illegal from the outset and void them all, particularly the outstanding ones.
Does a court give any notice, and go through some rule making process, when they declare a statute void?