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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