This will not stand: Judge orders DACA fully reinstated
Expect SCOTUS ultimately to vindicate Trump’s executive power to end a unilateral Obama program created in defiance of Congress and existing law.
The lower federal courts repeatedly have attempted to strip the executive (meaning THIS executive, because he’s Trump) of his constitutional and legislatively-granted powers.
We saw it in the Travel Order cases, which resulted ultimately in a Supreme Court rebuke of this judicial overreach.
We are seeing it also as to DACA, including ludicrous rulings that an administrative action by Obama cannot be terminated by Trump. One of the cases, arising out of San Francisco, almost made it to the Supreme Court. But the court refused to take the case requiring the government first to appeal to the Ninth Circuit, US Supreme Court will not allow Trump to bypass 9th Circuit in DACA case.
That San Francisco district court injunction was an abomination. I wrote of that Order:
Another day, another judicial intervention trying to prevent Donald Trump from exercising his lawful Executive Branch powers.
Of course, that’s not the verbiage the court used, but it’s a fair characterization of the San Francisco federal district court decision (full embed at bottom of post)(pdf.) in a lawsuit brought by Janet Napolitano on behalf of the California Regents seeking an injunction against Trump’s plans to end the DACA program.
The essence of the decision is that the stated reasons for ending the program were that the Trump administration considered the DACA program an unconstitutional attempt by Obama to evade the law as passed by Congress. The judge disagreed with the administration as to whether DACA was constitutional or not, and hence found the decision to end the program arbitrary and capricious as applied to people already enrolled….
What’s so outrageous about the decision is that it equates a disagreement as to policy to a lack of policy. There was nothing arbitrary or capricious in the administration taking the policy position that the decision whether to continue DACA should rest with the Congress. It may be a policy choice the Court disagrees with, but it was a policy choice nonetheless, grounded in what even the Court found to be an arguable interpretation of the law. It was was the valid exercise of executive power to reverse the policy decision of the Obama administration because of a different view of executive power….I would expect this decision to result in another stay, if not from the 9th Circuit, then from the Supreme Court.
There is a constitutional crisis in progress, one in which the Judiciary wrestles policy decisions away from the Executive Branch. Elections matter on policy decisions, unless that election is won by Donald Trump.
In February 2018, a federal judge in Brooklyn also enjoined the end of DACA. (Opinion here.) There also is a case in Texas that is scheduled for hearing soon.
Now we have a third district court order, this time out of D.C. The Opinion is here.
Buzzfeed reports:
A federal judge said on Friday that the Trump administration must reinstate the Deferred Action for Childhood Arrivals (DACA) program in its entirety — because the Department of Homeland Security failed to “give a rational explanation for its decision” to end it.
US District Judge John D. Bates — who has been hearing the challenge brought by the NAACP and others to the administration’s decision to end DACA — put his decision on hold for 20 days “to permit the government to determine whether it intends to appeal the Court’s decision and, if so, to seek a stay pending appeal.”
Bates initially ruled against the administration in April, but put his ruling on hold to give the government a chance to provide a rational for its decision.
In Friday’s ruling, Bates found that “the Court sees no reason to change its earlier determination that DACA’s rescission was arbitrary and capricious.”
The L.A. Times further elaborates on the Judge’s rationale:
Bates also rebuked the administration for what has been the administration’s practice (though he stuck to this one instance) of simply deciding it wants to do something and then going full steam ahead without following well established laws and procedures for how regulations and programs must be created or dismantled. In short, the government can’t just say, “we don’t like this one anymore so shut it down,” as it has tried to do to environmental, energy, federal land use, education and other policies.
The Administrative Procedure Act, among other governance rules, says the government must present a reason for doing something, and if it wants to undo something, it must also have a reason.
“The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program,” Bates wrote. “Rather, the Court simply holds that if DHS wishes to rescind the program — or to take any other action, for that matter — it must give a rational explanation for its decision.”
Prediction: This will not stand.
The Court in the D.C. case asserted that the government provide not rational explanation for the policy change. But in fact, reading the court opinion it’s clear that the Judge just didn’t like the explanation:
Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do. The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.
DACA was an Obama end-run around Congress. Trump ended that end-run.
I expect SCOTUS to uphold the current President’s power to end a program started by the prior President unilaterally and contrary to existing law.
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when, a year or two from now?
BTW: there is some redundant verbiage in the bottom of the poast. (the LAT quote & the quote from the holding)
The Left is hoping to stall appeal to SCOTUS until after the 2020 election when of course the tyrant Trump will be replaced by a Leftist who will order his compliant, non-recusing, AG to stand down the appeal.
The timing of this is probably intentional. Is there any possibility that Trump can get a timely stay from the Supreme Court this late in their calendar year?
Some people have speculated on the timing of this, that the current 8 member SCOTUS could split 4 to 4 and the ruling would stand.
That being said, I hope Prof. Jacobson is right.
What is most likely is that the government would appeal to the DC Circuit seeking a stay which would likely delay things until the nine member court was again fully seated.
How bad is the DC Circuit? Would they refuse to grant the stay, on some pretext, to support the idea that US District Judges can rule by nationwide injunction?
No matter the result, this is a win for the left.
How about greatly stepping up deportation of the rest of the illegals, that would send a clear message to illegals.
Another clear message would be to impose about a 20%, perhaps more cost of transfers to Mexico. 20-30% of the 70 billion and rising remittances to Mexico would go a long way towards building the wall and implementing electronic countermeasures.
Trump is honestly doing his best, but of course the left is stepping on his toes at every opportunity here too. Their favorite tool at the moment is the Flores Agreement, a settlement no doubt intentionally created by an open borders administration to overcome Congress.
I’m glad that the judge brought up DAPA. DAPA is identical to DACA, except for the specific class of people who are directly affected by it. And, those classes are nearly identical. DAPA wa found to be unconstitutional, by the lower courts. The only difference in the two programs, this is pointed out in the judge’s latest decision, is that DAPA was never implemented, due to the various lawsuits filed against it. And, that is the crux of this latest decision. To this judge, the legality or constitutionality of the program is immaterial, though this was the linchpin of the DHS argument, what is only material to him is whether the program is in operation. By that reasoning, if Trump ordered the IRS not to collect taxes or prosecute those who did not file tax returns, the next administration could not terminate this practice, unless some court agreed that there was an argument with which the court agreed, beyond merely the lack of authority to decline to enforce the law as passed by Congress.
This is another stupid decision having NO basis in either logic or the law.
It will be fine if Trump simply ends the program and stays any action on the part of the Executive Branch to implement the lower court decisions until such time as the SCOTUS rules.
That isn’t how the country has operated for far too long. These judges are playing with fire and eventually the people will be fed up with this crap. The question isn’t IF, but WHEN.
The judiciary is telling the executive what to do and how to do it. When was that judge’s election held?
Apparently “all” no longer means “all.” The old version of Article 1, section 1 once read, “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.”
Clearly the judge is out of line. So why would the executive ever consider paying attention to this so-called order. Law-making is fully (“all”) within the legislative branch; necessarily then none is within the judiciary.
All means all and that’s all that all means.
“Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision.”
The response should be, “because”.
What a load. It will be with the Supremes soon enough.
It seems to me that now the Administration could just issue a new order, identical to the old, with a different reason. Let the judge ruminate on that reason for a while, and in the meantime SCOTUS will remove his ability to do so.
It’s likely that judge would immediately say that other reason isn’t good enough either, or that it’s contempt or something “just trying to get around my ruling”, but the judge said that should be OK. He said the reason isn’t good enough, here’s a reason that may be better (in your twisted mind, judge.)
I’m wondering at what point they just start ignoring the court if they want to be activists. I’m certainly wondering where the checks and balances are for these robed democrats.
I’m wondering at what point they just start ignoring the court if they want to be activists. I’m certainly wondering where the checks and balances are for these robed democrats.
I expect SCOTUS to uphold the current President’s power
The obvious problem is that relying on SCOTUS allows the Courts to decide the extent of the power of the courts. This is untenable. We wouldn’t allow a piece of the Executive to determine the limits of the Executive branch’s own powers. Nor would we allow a Congressional committee to determine the full powers of the Legislature. A government of limited and enumerated powers can’t simply decide that it has more powers simply because it would find them convenient, or pretends that it can see enumerated powers where they don’t exist.
A Judiciary which is the sole arbiter of its own powers—even one which we think will make the “right” decision—would be disastrous. Even worse, it would be explicitly anti-American—an elected American dictator would be intolerable; an unelected one (or, for that matter, nine) would be ridiculous.
At some point, an Andrew Jackson statement isn’t just a good idea, it’s vital.
This is indeed a weakness in our system. Fortunately, although lower courts have misbehaved, sometimes egregiously, traditionally SCOTUS is respectful of separation of powers. They’ve never advocated going full-judicial.
If they ever do, our republic is done. It’s VITAL that conservatives, not radical leftists, control SCOTUS.
So this is saying the executive branch has no right to decide for itself what is unconstitutional, only the courts can decide that, so if the government wants to halt an unconstitutional program, it must go through the minutiae of federal procedure because until a court rules the mere opinion of the Attorney General has some kind of rational basis, the law really does trump the constitution.
Well, is that a good idea? I vaguely recall Obama worked around it with gay marriage (as the issue was known at the time) by simply refusing to defend against a lawsuit based on a new opinion that the law was unconstitutional. Is that how it works now? Only an outside lawsuit permits the government to stop something it deems unconstitutional, otherwise the courts can and should order it to continue?
Everyone here trying to explain the logic is wasting their time (which I add, plays right into the hands of the other side). This has NOTHING TO DO WITH LOGIC OR THE LAW.
It is about power.
If we keep dicking around, allowing judges to remain on the bench while they actively SABOTAGE the separation of powers, we will end up putting out a never-ending series of fires.
Somebody has to be made an example of.
How do you explain Judge Bates, a rock-solid Republican appointee who has presided over a plethora of national security cases in recent years, ruling in this manner? Is this going back to that old Madison case and saying not only is the judicial branch empowered to settle questions of constitutionality, no other branch shares that power?
Someone does need to settle it, yes. I’m just wondering if it’ll be settled like people in these comments imagine.
How to explain a “rock solid Republican”? Apparently the judge is a Never Trumper and Republican member of the Deep State.
Congress has the power to “make an example” of rogue judges, but with the current “leadership” in both houses, that will never happen. Hopefully Jim Jordan will take over for Ryan McPussy.
Impeachment and removal requires 67 Senators. This will not happen.
I may be mistaken, but Congress has the power to downsize courts. That’s not the same procedure as impeachment.
You are mistaken. Congress by legislation can downsize courts, but only by attrition. It cannot fire existing judges on them.
It’s always in the context of a lawsuit, because courts only decide controversies. They can’t invent a case, one has to be brought to them. But some leftist can always be found to file any given case.
Dear Judge Whatever:
Go Fuck Yourself.
Signed,
The Executive Branch
PS, Co-equal. 🙂
Maxine’s head would literally explode!
Maxine’s head exploding would be a significant fringe benefit.
Empty explosion.
Correction – it would implode.
Study Physics.
Let me get this straight. One president decides he doesn’t like the law, so he just throws it out and that’s fine. Then the next president decides to go back to obeying the law and is overruled because he didn’t give a good enough reason?
Right! Makes perfect sense. Why didn’t we understand that in the first place?
I’m wondering that myself.
We need Congress to start removing these judges for cause.
Congressional impeachment is extremely difficult.
If PT wants to really “shake the tree”
https://www.yalelawjournal.org/article/how-to-remove-a-federal-judge
Virtually impossible as it is unlikely that many/any Democrat Senators would vote to remove a judge who is a member of the “Opposition”.
In that case, it’s time for Trump to openly disobey the judge. Give the public the reasons why his order is illegitimate and let them decide.
Exactly.
This judge should be ignored for making such a ludicrous assertion that EOs may only be rescinded with judicial approval.
“Punishment is the Process”
It would not be necessary to go through the entire process to remove a justice who misbehaves like this. Simply putting the judge under investigation pending a removal action would (naturally) remove them from sitting over any more new cases until the process is complete.
I can foresee such a process taking several years, during which a replacement justice can be appointed to take over the workload. Now go sit in the corner and think about what you’ve done while the rest of the class continues.
At what point should the President and Executive branch stop abiding by these orders?
IMO about 850 zeptoseconds after.
(Shortest length of measured time so far)
For eight years, Odumbo set the standard: now there is no standard anymore.
What happens if POTUS refuses to comply with a lowly judge’s order? This is unheard of from the point of making any sense. Logic would tell us that the judge’s order would have to makes it way through the SCOTUS BEFORE it could take effect. Not the other way around. What we are doing now is to strip POTUS of any power if it is challenged by mostly non elected judges. Oc course, with McConnell and Ryan as non-allies Congress will do nothing to help him.
What happens? The bureaucracy refuses to comply and follows the judge’s decision.
There is no rule of law anymore.
If they fail to do their jobs as directed by the chief executive, then they should given a pink slip and a box to take their personal effects with them.
Rational reason?
Jeez, couldn’t be easier.
The program was established unconstitutionally, and therefore must not stand.
Be tough for the judge to reason a way around that.
Not really. The judge doesn’t have to be logical or reasonable. In this case he simply decided he didn’t like the “reason” that the Obama administration’s action was unconstitutional and said it wasn’t a good enough reason.
A serious question to the legal experts here. Are the arguments presented by the gov’t lawyers top drawer, or we just seeing the deep state going through the motions and presenting minimal arguments that are easy for a willing judge to overturn? Is the problem just the judges, or is doj complicit by not doing a professional job in the arguments it makes?
The judge found the administration has the power to rescind the previous administration’s administrative action according to statute with the statute requiring a reason for the action. This judge found a stated reason that the previous action was without basis in statute and Constitution insufficient reason to rescind. That pretty well lays it on the judge, not the DoJ lawyers.
There is a bright side, there are roughly eight or nine billion more folks that aren’t yet US citizens. As soon as they are, this will become a moot issue.
As time goes on my respect for Andrew Jackson increases exponentially.
You do know, don’t you, that Jackson never said that line you’re thinking of?
And of course the Trail of Tears itself was despicable and indefensible.
But yes, at some point some president is going to have to stand up to the judiciary.
It was never a law. It was created by one president with limited authority and cancelled by a follow-on president under the same authority.
Trump needs to take this to SCOTUS. Otherwise it will set the precedence that when any president signs an executive order, it cannot be cancelled by a future president; effectively, it will carry the rule of law until a future congress writes a law that specifically cancels it…..and only then if a future federal judge allows them to do it.
Looks like they’ll have to redo the Schoolhouse Rock video. “I am a judge. I rule the world. The Constitution said there were three equal branches, but I reject the other two.” Someone else can work on the rhyming.
“A conclusory assertion that a prior policy is illegal . . . simply will not do.”
____________________
The “conclusory assertion” that the executive-created amnesty program was beyond the constitutional authority of the president was acknowledged on multiple occasions by none other than Barry Hussein Obama, the very same president who (after he realized that it would benefit him politically in the 2012 election) simply ignored the constitutional limits on his power and went ahead and authorized the program anyway.
While I agree with the Prof. a couple of options occur…
1. replace the EO rescinding DACA with a more tightly drawn one, resetting the whole matter, and/or
2. have Congress modify 5 U.S.C. § 706(2) and its brethren to change the analysis CAREFULLY (since a future POTUS could use them perversely
One other observation: IIRC there are challenges to the Barracula EO still wending their way through the courts. I don’t follow this closely, so I could be mistaken. If there are not, there should be, and I can see several reasons why there should be some new ones.
Your two numbered suggestions are essentially worthless.
Replacing the rescinding EO, with another EO, will simply start the judicial review process all over again. We saw this with the immigration limitation EOs. It would be counter productive.
There is nothing wrong with 5 USC 706. What happened here is that the judge cherry-picked the statute to manufacture a reason to reject the arguments of the Administration. One of the claims regarding the Obama DACA was that it was an unconstitutional action by President Obama and was in direct violation of federal law. This is the linchpin of the adminsitration’s argument. Yet, the judge chose to ignore that. H did not rule as to the constitutionality of the initial action to set up the program. If, the program is either unconstitutional OR illegal, then any action to rescind the program is both constitutional AND legal. Yet, in the cases regarding the DAPA program and the DACA program, the courts steadfastly refuse to rule, definitively, on the constitutionality and/or legality of creating a structured program to shield people, who are violating the law, from being dealt with as required by law.
So it comes down to the Courts functionally ruling that the Constitution and the law must defer to the actions, even illegal and unconstitutional actions, of any Democrat. And that no one not a Democrat can take any steps to bring those illegal and unconstitutional actions within the law and Constitution.
Simultaneously, the Democrats are working to convince Americans, including White Americans, that Whites are as a race hostile to everybody else and due to race and the nature of society can never, ever, ever be anything else and must be destroyed by a newly racially aware coalition of everyone non-White who does not accept that society.
Combining these two things, we can see a logical outcome that as this racially aware coalition forms, and Whites are attacked that they themselves will become “racially aware” and define themselves as under attack by everyone else. And that all faith in the law, the Constitution, and judicial due process is pointless.
Taking the Left’s actions to the logical conclusion, it is going to get extremely energetic and untidy, AND that the results for the Left and those who support the Left’s anti-White purge are not going to be what they think they are going to be.
The Left, politically and judicially, have made the rules. They are going to see how they like living under them.
I’ve finally caught the judge’s remarks as published. In his mind, he offered the government a chance to explain to him just why this is unconstitutional, as Sen. and later AG Sessions strongly holds. The government has expressed through deed that it would prefer not to. I’m left wondering what in blazes is going on.
Can it be laziness – deliberate laziness? Is it refusal to acknowledge the court as the sole arbiter of what is unconstitutional now that the matter has been brought before him, and they don’t want to set that precedent, apparently already firm in the judicial branch’s mind? Something is rotten with this case, and I find it sad and unfortunate I cannot narrow down precisely what.
I also find it lazy to take the route of some and call Judge Bates a liberal activist judge. He does not fit the liberal activist mold at all.
https://assets.documentcloud.org/documents/4446379/4-24-18-Bates-Daca-Opinion.pdf
This is the original decision of Judge Bates, if anyone is interested. It is excessively long, but an interesting read.
The constitutionality of the decision to defer enforcement of existing law, with regard to an entire class of offenders, has to be made BEFORE anything else can be done. If that action is not constitutional, then it makes no difference whether any other laws apply to changing the decision or not.
Bates chose to sidestep the question of whether the initial action, which created the DACA, was constitutional. The Administration was not too concerned with that, as, if was assumed that DACA was constitutional and legal, then the same discretionary authority which allowed the Obama DHS to create it would also allow the Trump DHS to use its discretion to modify or rescind the program. What Bates did was to decide that once the program was established it could not be modified or rescinded unless the agency showed that there was some compelling reason to begin enforcing the law with regard to this class of people. And, he refused to accept any of the reasons put forth by the current administration. In other words, he ignored the constitutional authority aspect, then turned around and set the bar for the discretion of the current administration, to exercise the same discretion as the previous administration in this area, much higher that its level to decide NOT to prosecute a class of offender, which was used to justify establishing DACA in the first place. This is neither well grounded in law or logic. If the previous administration had the discretional authority to not enforce the law, then the current administration should have the same discretional authority to begin enforcement of the law again. None of the members of the DACA program were granted any immunity from prosecution or other enforcement actions, applicable under federal law, by any constitutionally recognized authority.
Following Bates’ original decision it is clear that nothing the administration could do would have changed it. So, it will be appealed.
Well, was proper federal procedure followed when establishing the policy to begin with? I’m asking because I don’t know, and I do not know who does.
This is the one point which no court has ever addressed. So, it could well be that the program was both a constitutional and legal. The current administration’s position is that a program which arbitrarily defers enforce of law against an entire class of people, rather than an individual, is a violation of the immigration laws. This has never been addressed by the courts. What Judge Baker did was to assume, is suppose based solely on the fact that the DACA program existed, that it was both a constitutional and legal exercise of executive authority.
But, and this is the kicker, even if DACA is both constitutional and legal, it was set up as a temporary deferment program, not a permanent one. And, this would make it allowable for the current administration to rescind the program. It was obviously not done in an arbitrary or capricious manner, the excuse that Baker used to rule against the Administration, as the current Administration is honoring the existing deferments, just not renewing them or granting new ones. The maintenance of this program is the responsibility of the Congress, as Trump made very clear. If the Congress chooses not to act to normalize the status of the members of this program, that is their prerogative and the Executive Branch is bound by that Congressional decision.
It’s time for Trump to declare that he won’t accept the judge’s ruling and ignore it. He should appeal to the SC directly and hopefully this will be enough for them to rule in his favor.
It’s not up to the Supreme Court to reinforce Trump’s executive power, because neither the Supreme Court nor any other agency of the judicial branch is the source of his executive powers, the Constitution is. Trump does not need to pay the least bit of attention to these foolish Leftist judges making these pronouncements that they have absolutely no authority to make or enforce. Enough of this nonsense.
Can somebody explain to me why district court rulings have national jurisdiction? What’s the point of even calling it a “district” court if their rulings apply outside their district? It makes forum shopping too easy.
If a district court ruling applies outside their district, why don’t appellate court rulings apply outside their circuit? Just think of what the ninth circuit could do then.
I’m not a lawyer. I possess at best a layman’s understanding of legal processes. (The only time I’ve been in a courtroom was for jury duty.) But I so understand politics pretty well. So here’s my take:
At this point, President Trump needs to tell these activist judges with their findings to go pound sand. Challenge them to enforce it, via Andrew Jackson. There is more political upside to Trump doing just that, than there are political risks.
These judicial rulings are more political than are legal. Trump needs to respond politically, not legally.
When is Trump finally going to learn the words ultra vires, and use them. When an official, including a judge, acts outside his office’s authority, he is not acting in his official capacity but as a private person, and what he does has no legal force. There have been several such cases in the last few years, and this seems to me clearly to be one of them. If I were in Trump’s shoes I would simply announce that this order is ultra vires, it is not a court order but simply Mr Bates’s private opinion, so I will order DHS to ignore it, and fire anyone who disobeys my order.