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9th Circuit Upholds DACA Injunction

9th Circuit Upholds DACA Injunction

“The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public.”

https://www.youtube.com/watch?v=jtikOmKT1kI

Thursday, the 9th Circuit upheld an injunction which blocked the Trump administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program.

From The Daily Caller:

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit concluded DACA’s recension “is arbitrary, capricious, or otherwise not in accordance with law.”

Supreme Court action could soon follow. The Trump administration asked the high court to intervene in the DACA cases Monday. The move was highly unusual, as three federal appeals courts, including the 9th Circuit, are separately reviewing orders requiring the government to continue administering DACA. The justices seldom review a case before the circuit courts issue judgment.

The University of California (UC) brought Thursday’s case after the U.S. Department of Homeland Security (DHS) issued a memo rescinding DACA on Sept. 5, 2017. Former Attorney General Jeff Sessions sent a memo to DHS advising that DACA was not lawful one day prior on Sept. 4.

The administration argues that its decision to end the program is not reviewable in court, since DACA is a purely discretionary executive branch initiative. They also say a federal law called the Immigration and Nationality Act (INA) prohibits judicial review of claims arising from deportation proceedings.

Judge Kim Wardlaw, writing for the panel, rejected that argument, explaining that courts can review DHS’s decision because the government’s finding that DACA is unlawful was its primary reason for terminating it.

Decision here:

University of California v DHS Memo Opinion by Legal Insurrection on Scribd

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Comments

thalesofmiletus | November 8, 2018 at 5:28 pm

Hawaiian Judge Syndrome: “Trump cannot use an Executive Order to reverse DACA because we like Obama and ORANGE MAN BAD!”

    In one of the few instances where he admitted he couldn’t use an Executive Order to change Immigration Statute, His Imperial Executiveness, Emperor Barak the Nonpareil had Homeland Security, an administrative agency, issue a memo implementing the change.

    So of course the Trump administration can’t use a memo from Homeland Security rescinding the original memo. That wouldn’t be fair.

    No, that is absolutely not what this decision says.

      RedEchos in reply to Milhouse. | November 8, 2018 at 10:39 pm

      Thought I saw those exact words on the last page…

      ????

        Milhouse in reply to RedEchos. | November 9, 2018 at 12:23 am

        The last page is

        Accordingly, while I would remand for the district court to evaluate the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim as an alternative basis for preliminary relief in the first instance, I join the majority in affirming the preliminary injunction to preserve the status quo while Plaintiffs attempt to prove up that claim.

        Where do you see anything like that?

        On the contrary, the decision says Trump can use an Executive Order to reverse DACA, under the same conditions that applied to 0bama when he started DACA.

Gosh darn it, that 9th Circuit Nail just keeps popping up. Whatever will we do.

    notamemberofanyorganizedpolicital in reply to Fen. | November 8, 2018 at 5:39 pm

    Lots of Hawaiians have been wanting to be their own CA CA Land.

    Time to set them free of all U.S. funds!

    FYI

    “…. Michael Bloomberg will be the Democrat/Marxist nominee for 2020. There will be a field of candidates; but the professional Democrat machine will run the splitter strategy, and the back-room crowd who really control the elements of power have already pre-selected their nominee, Michael Bloomberg. Marxists always have the plan mapped out well in advance. (A woman will be the VP nominee)

    If you start now looking at what actions the Marxists are taking, through the prism of their goal being President Michael Bloomberg, lots of things will make a lot more sense…”

    https://theconservativetreehouse.com/2018/11/08/what-we-can-expect-with-a-democrat-marxist-controlled-house-of-representatives/#more-156461

So essentially one president can create an extra judicial law, but then the next president cannot repeal it. Curious.

    Edward in reply to beagleEar. | November 8, 2018 at 5:42 pm

    Why everybody knows that only Congress can rescind a memorandum issued by a Democrat administration.

    Milhouse in reply to beagleEar. | November 8, 2018 at 8:04 pm

    No, that is exactly the opposite of what this decision says. Please inform yourself of what the court said before attacking it. There’s plenty in the decision that can be attacked, but you’re attacking something that exists only in your imagination, not in the decision.

Of course the Ninth Circus upheld the injunction, did we expect otherwise?

99 pages to decide nothing. All this decision does it to afford the plaintiffs the right to pursue an equal protection claim and to bar the Executive from deporting any member of this class until such time as all decisions have been rendered. It never addresses the core contention that the establishment of DACA was, itself, an extra legal action or, if it was, in fact, a lawful decision concerning deferred enforcement, why refusing to renew the program would not be within the power of the current Executive.

    dystopia in reply to Mac45. | November 8, 2018 at 5:53 pm

    These are political decisions dressed up as legal decisions. Democrats have found that policy can be more effectively implemented by carefully choosing venue and judge instead of legislation. I can’t think of a state that should be less concerned about immigration than Hawaii.

    Legislation is needed to make any national restraining order against the United States nugatory unless first affirmed by the Supreme Court of the United States.

    Milhouse in reply to Mac45. | November 8, 2018 at 8:19 pm

    It never addresses the core contention that the establishment of DACA was, itself, an extra legal action or, if it was, in fact, a lawful decision concerning deferred enforcement, why refusing to renew the program would not be within the power of the current Executive.

    It absolutely does address this. It shows that deferred action, including programs applying it to whole classes of people, have been accepted and standard practice for more than a century.

    And it says refusing to renew the program is within the power of the current Executive, so long as it does so for a valid reason, i.e. not arbitrarily and capriciously, just as the original decision to implement it needed a valid reason.

    So while there is much to object to in this decision, these points aren’t them.

      Olinser in reply to Milhouse. | November 9, 2018 at 1:28 am

      So to be clear, your entire argument is that anybody else could do this, but ORANGE MAN BAD

        Milhouse in reply to Olinser. | November 11, 2018 at 3:44 am

        No, you idiot. You can criticize the decision all you like, but first you have to know what it says. And what it says is that any president incluidng this one can do this, so long as they have a valid reason; no president can do something like this for no valid reason. All Trump has to do is say that he’s decided DACA is a bad policy, and is therefore ending it. That’s a valid reason. But he refuses to do that.

      iowan2 in reply to Milhouse. | November 9, 2018 at 8:42 pm

      What kind of special hell have you created? An executive memo is required to meet a non-standard of non-arbitrariness? The Executive can direct his agencies anyway he wants as long as it does not violate the law, or, constitution. In this case, it would seem President Trump can just ignore the Obama memo and enforce the law. Enforcing the law would supersede a memo.

        Milhouse in reply to iowan2. | November 11, 2018 at 3:47 am

        Yes, government agency actions may not be arbitrary or capricious. I haven’t created this, it’s long-settled black letter law. Are you seriously disputing it?!

The 9th Circus continues it’s usual three ring activist role. At what point does this joke of a Court become so useless that it is finally broken up?

With that Court it is always political. Shouldn’t there be a law whereby judges who provide rulings that are struck down numerous times by the Supreme Court lose their positions? They waste valuable resources to push agenda over laws, therefore they are not working for the people, but for a political party, which they are supposed to be neutral about. This is not doing their job, so let them get jobs as SJW under Soros directly, at least then they will be more honest in who really owns them.

    Close The Fed in reply to oldgoat36. | November 8, 2018 at 6:23 pm

    The S.O.B.s should be impeached.

    Their rulings are making normal people wonder why in hell they obey any law, since it’s all made up anyway.

An EO is not law – just because Former President Obama issued the EO does not mean that the Current President Trump cannot issue an EO to change it.

If you want change, then go to Congress and propose a law which then can be approved or vetoed by the President. Of course, the Supreme Court can then offer their opinion. And then, Congress can make a law which passes muster.

What is so difficult about this?

    mailman in reply to Liz. | November 8, 2018 at 6:24 pm

    Hang on…if EO is not law then surely an EO that is not law does not require a law to rescind the EO?

    So if something is created by an EO then surely it stands to reason that same EO can be undone with another EO?

    Further more, if an EO is unconstitutional surely that unconstitutional non-law EO can be undone by another EO?

    Finally…surely it stands to reason that an EO by a previous administration cannot bound any future administrations to continue to carry out the intentions of that EO?

    Close The Fed in reply to Liz. | November 8, 2018 at 6:25 pm

    Liz, Liz, Liz, I agree, except not so much judicial deference.

    Judges really are not Greek gods. They’re just arrogant P*****.

    John Marshall went too far and no one stopped it. We need to stop judicial supremacy and resurrect Plato so we can explain to him why “philosopher kings” are pernicious.

    Milhouse in reply to Liz. | November 8, 2018 at 8:20 pm

    An EO is not law – just because Former President Obama issued the EO does not mean that the Current President Trump cannot issue an EO to change it.

    That’s right, and the 9th Circuit explicitly agrees with that.

caseoftheblues | November 8, 2018 at 6:16 pm

If only liberal judges held the Constitution in the same awe and respect they do every EO from Obama….if only…

regulus arcturus | November 8, 2018 at 6:26 pm

Judicial malpractice.

Every person whose name appears on this document should be removed and disbarred immediately.

The 9th circuit is just a freaking joke. There is literally ZERO legal justification for this, and they damn well know it.

One of the reasons Trump already requested the SC just take the case and bypass these loons.

“Future NASA engineer”? Maybe, but I doubt it. You will have to speak fluent English to begin with. And then, be able to understand and apply Navier-Stokes, differential (or, as we called them as undergraduates difficult) equations, computational fluid dynamics, finite element analysis, and a lot of other hard stuff. Not likely that any daca things would qualify.

    walls in reply to 02sbxstr. | November 8, 2018 at 8:09 pm

    They qualify for dumping out babies and applying for welfare.

    Milhouse in reply to 02sbxstr. | November 8, 2018 at 8:23 pm

    Why do you assume someone who grew up in America doesn’t speak English at least as well as you do? And English-speaking or not, what on earth could possibly make you assume that DACA recipients are less likely than anyone else to be able to understand any of the subjects you list? Racism?

      Close The Fed in reply to Milhouse. | November 8, 2018 at 10:38 pm

      Lovely, Milhouse, absolutely lovely…

      So according to the man with the “superior” morals, we’re supposed to ignore that such a person likely grew up in a home where English was not spoken, and that his school had kids speaking so many languages, that there were insufficient teachers to inculcate a deep knowledge of English.

      We also have to ignore the predilection of them to drop out of school and do manual labor.

      Stereotypes, like cliches, becomes stereotypes because they are TRUE. Quit calling people racist when they are simply articulating known generalities. The PC arrogance is strong in this one.

        Kids learn the language of the place they grow up, regardless of what is spoken in the home. Surely you know that.

        And whose “predilection to drop out of school and do manual labor?” DACA recipients?! They have no such predilection, and your assumption that they do is pure racism.

        Quit calling people racist when they are simply articulating known generalities

        First, these are not known generalities, they’re your own unfounded assumptions.

        Second, even if they were true generalities, making judgments about an individual based on the statistics of some larger set of which he is a member is the very definition of racism.

      herm2416 in reply to Milhouse. | November 9, 2018 at 7:49 am

      Do you know the difference between race and ethnicity? Are you making the assumption that all DACA recipients are not of your shade, therefore declaring racism?

    JusticeDelivered in reply to 02sbxstr. | November 8, 2018 at 8:33 pm

    Average Hispanic IQ is 87. Probability of Hispanics having high enough IQ is about 1/1000 as likely as it is for a Caucasian.

      And using that statistic to determine whether the person holding the sign is likely to qualify as a NASA engineer is the very definition of racism.

So it seems Trump brought this on himself. If he’d simply announced that he thinks DACA is a bad policy and is therefore rescinding it, none of this would be happening. But no. He refused to do that. He wants to portray himself as a compassionate president who would love to keep DACA if only he could, but the law compels him to cancel it. 0bama broke the law, for a good reason but still he had no right to, and now Trump is putting the law above his own preferences and policies, and will obey a bad law until Congress passes a better one.

To this the district court, and now the 9th circuit, has said “No. The legal advice you’ve received is incorrect. DACA was legal, so you are not required to rescind it. And since you insist that this erroneous legal advice is the sole reason for your decision, it’s not a valid reason and you must consider the option of keeping DACA before deciding not to.

The reason why this is important, the court says, is because politicians entrusted with discretionary power have to be accountable to the people for how they use it. If the President wants to end DACA let him say so, and the people will judge him for it. By pretending that he had no choice he avoids that judgment.

The main objection I have to this reasoning is that it amounts to giving an advisory opinion. Yes, it is the role of the courts to say what the law is — but only when a case or controversy is brought before them. In this case the President has not asked this court for its opinion; in fact he can’t do that. He has lawyers for that, and for better or worse this is the advice they gave him. It seems to me that he’s entitled to accept and follow that advice until some case brings the question properly before a court. And having adopted that advice, the decision to obey it is neither arbitrary nor capricious.

In other words, I believe the only question properly before the court was not whether the legal advice Trump received is correct, but only whether it was reasonable for him to accept it. Since he is not a lawyer, and his lawyers are very good ones, it seems obvious and indisputable that it’s reasonable for him to accept their advice even if not everyone agrees with it, and even if these judges would have given him different advice were he to have hired them. The court’s decision could only be justified if the advice were so clearly wrong that no competent lawyer would give it and no reasonable layman would believe it; but that’s a ridiculous hypothetical.

    mailman in reply to Milhouse. | November 9, 2018 at 9:11 am

    The slippery slope here is that there now has to be another level of Government (but separate from the Government) who’s sole role is to divine the intentions of the President (ie. are the intentions good or rwaaaacist).

    I think even someone of the limited intellect as yourself mills can see the problems with the 9th circuits approach.

So the 9th Circuit ruled that the President must continue breaking the law because enforcing the law would be too much work and cause too much stress on the lawbreakers.

How about we fly these lawbreakers back to their own countries first class, would that help? (after due process, of course)

    Milhouse in reply to georgfelis. | November 9, 2018 at 12:32 am

    No, it did not. Where do you get these crazy ideas? The court said the exact opposite. DACA does not break any law, therefore the President is free to continue it if he likes, or to end it if he decides he wants to.

      randian in reply to Milhouse. | November 9, 2018 at 2:03 am

      But he can end it only if his publicly stated reason for doing so is approved by our liberal overlords in CA9. I suspect the reality is that CA9 won’t ever give their approval, no matter what reason Trump gives, so he shouldn’t bother with them. And how does their decision have national import, anyway? CA9 decisions should only apply in the 9th Circuit. He can cancel DACA with immediate effect outside the 9th Circuit.

        Milhouse in reply to randian. | November 11, 2018 at 4:03 am

        No, his reason doesn’t have to be approved. But it has to be valid. Every action by any government agency is subject to that standard.

        I suspect the reality is that CA9 won’t ever give their approval, no matter what reason Trump gives, so he shouldn’t bother with them.

        You have no basis for that suspicion. On the contrary, all he has to do is issue an order ending DACA because he has decided it’s bad policy. That is a valid reason. End of story. This case only exists because he refuses to take responsibility for his decisions, instead pretending that he only did it because he was legally required to. Well, says the court, congratulations, Mr President, you get your wish. You don’t have to end DACA. Ms Duke’s memo announcing its end is therefore invalid, and the ball is now in your court.

Close The Fed | November 9, 2018 at 8:12 am

So once again Americans are Gulliver, staked to the ground by threads to 20 million illegal aliens, and required by people dressed in black cotton/polyester blends, to be insulted in the bargain by the likes of Milhouse.

If my obligation as an American is to consent to being so tied and insulted by the likes of Milhouse, I take a hard pass. Let the divorce be filed, and I will establish a new Republic which will restore rights of association and property and national defense, so thatrather than being required to rent to illegals, pay for their births/schools/food stamps, and I may call them the tax leeches they are and my army may repel them at the border to prevent me and my countrymen’s dissipation.

I WANT MY FREEDOM, NOT THIS FAKE FREEDOM I’M SUPPOSED TO BE SATISIFIED WITH.

Another grotesque aspect of this is that we Californians are forced to fund UC’s stepping out of its lane to interfere in immigration law.

Judge Wardlaw c.v. on Wikipedia. It’s like finding out that there was gambling at Rick’s.
https://en.wikipedia.org/wiki/Kim_McLane_Wardlaw

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