DACA and the Judicial #Resistance

Judge’s move to restore Obama’s executive order tramples on separation of powers.

In the latest example of judicial tyranny, yet another federal district court judge took it upon himself to usurp the constitutional powers of the president of the United States and Congress. Judge John D. Bates of the Federal District Court for the District of Columbia ruled that President Trump’s executive order terminating the Deferred Action for Childhood Arrivals program (“DACA”), established by an executive order issued by his predecessor Barack Obama, was “unlawful.” Judge Bates based his bizarre decision on the grounds that President Trump’s rescission action, implemented by the Department of Homeland Security pursuant to the president’s direction, was “arbitrary and capricious.“  Judge Bates claimed that the Trump administration had failed to provide an adequate explanation for cancelling the DACA program. “The Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision,” Judge Bates wrote in his 60-page ruling. “It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action,” Judge Bates added. “For these reasons, DACA’s rescission was unlawful and must be set aside.”

It was Judge Bates who issued a decision “arbitrary and capricious in its own right,” not President Trump.

Obama’s DACA program had granted young immigrants who were brought to the U.S. illegally as children the right to work and stay in the U.S. without fear of deportation. These so-called “Dreamers,“ many of whom are now adults, were technically in the country illegally themselves when Obama unilaterally decided to “legislate” their temporary legal status, renewable ad infinitum, through executive action because he was frustrated with congressional inaction. Judge Bates showed his bias early in his opinion by stating that he would use the immigration activists’ favorite euphemism “undocumented,” rather than the more accurate term “illegal,” so as not to offend certain people. 

Judge Bates went one step further than the two federal district court judges who had kept DACA’s existing protections in place, allowing only its previous beneficiaries to renew their DACA status and remain in the country. Judge Bates ruled that the Trump administration must also begin accepting new applications from the “Dreamers” who had been eligible to apply for DACA protection but failed to do so in time. The only saving grace in Judge Bates’ decision is that he stayed his ruling from going into effect for 90 days to give the Department of Homeland Security the opportunity to better explain its justification for ending the DACA program. In an odd twist, the judge counseled the Trump administration to offer “coherent” arguments for how DACA conflicts with immigration law or why it violates the president’s constitutional duty to “take Care that the Laws be faithfully executed.” This begs the question as to why Judge Bates did not analyze these propositions himself, for which he acknowledged that credible arguments existed. His lame excuse was that it was not his place to make those arguments for the government. So instead, Judge Bates decided that it was his place to substitute his policy judgment for that of the two elected branches of government, violating the fundamental constitutional principle of separation of powers.

President Trump’s executive order did nothing more than restore conditions for the Dreamers to the way they were before Obama issued his DACA executive fiat in the absence of remedial legislation from Congress. Indeed, in his own executive order, President Trump gave time for Congress to take up the Dreamers issue in new legislation where such significant changes in immigration law policy belongs. President Trump thereby demonstrated respect for separation of powers and checks and balances. Judge Bates did the opposite.

Indeed, rescinding the DACA program that former President Obama had created by executive fiat was well within the current president’s own executive authority. By using such executive authority to simply undo one of Obama’s controversial executive orders with which President Trump disagrees on policy grounds, President Trump avoided having to expend executive branch resources defending it against threatened legal challenges. Such allocation of executive resources and balancing the risks of litigation against the executive department are entirely within his discretion as the nation’s chief executive officer. President Trump’s Justice and Homeland Security departments had cited in support of the president’s decision the threats of lawsuits and a prior federal appeals court decision that had rejected Obama’s attempt to expand DACA in 2014 via another program Obama established through executive order, known as the Deferred Action for Parents of Americans program (“DAPA”). That appeals court decision was affirmed by an equally divided Supreme Court in a per curiam opinion on June 23, 2016.

The Trump administration should not have to prove that the prior appeals court was correct in rejecting DAPA, including its expansion of DACA, or that the appeals court decision was applicable by analogy to assessing the legality of DACA itself. The relevant question is whether the Trump administration had a right to act upon its concern that the appeals court decision striking down DAPA could possibly serve as a precedent in the threatened legal challenges against DACA. In his infinite “wisdom,” Judge Bates said no. 

The Trump administration has just short of 90 days to provide Judge Bates with an explanation that satisfies him for its DACA rescission action. The Supreme Court in late February declined the Trump administration’s request that it immediately decide whether it could shut down DACA without going through the regular appeals process regarding prior lower court action against the DACA rescission order. Thus, it is highly unlikely that the Supreme Court would intervene now to further stay or set aside Judge Bates’ ruling. At minimum, it would wait to act until Judge Bates lifts his stay and issues a final order, if it decides to act at all before lower court appeals are exhausted. Thus, the Trump administration may need to force the Supreme Court’s hand by including in its explanatory submission to Judge Bates a shot across the bow. Its submission should state that Judge Bates’ ruling unconstitutionally interferes with the president’s ability to carry out his constitutional duties and run the executive branch. If the judge lifts his stay rather than promptly reverse his decision cancelling President Trump’s executive order completely and requiring the processing of new Dreamer applications, the Trump administration should declare that it will not honor the decision pending the outcome of a new motion filed directly with the Supreme Court. That motion would seek a preliminary injunction to enjoin Judge Bates’ violation of the Constitution’s principle of separation of powers that threatens to cause irreparable harm to the executive branch’s ability to carry out its authorized duties. The Supreme Court will have little reason to delay resolving what will constitute an immediate constitutional crisis.

Thomas Jefferson warned against judicial tyranny under which the Constitution could become “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please.” This is exactly what will happen if Judge Bates and the other judges seeking to prevent President Trump from using his executive powers to rescind his predecessor’s constitutionally shaky executive order are not stopped in their tracks.