Yesterday, Judge William Alsup of the Northern District of California, managed to enrage President Donald Trump by issuing provisional relief barring the Attorney General from deporting the approximately 700,000 young people who were brought as children by their parents into America illegally.
Judging from the Chief Executive’s reaction you’d have thought he had declared them citizens and ordered them housed in the West Wing. Mr. Trump sputtered:
“It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) … almost always wins before being reversed by higher courts,” the Republican president wrote on Twitter.
In his 49 page Order, Judge Alsup began by pointing out,
In 2012, the United States Department of Homeland Security adopted a program to postpone deportation of undocumented immigrants brought to America as children and, pending action in their cases, to assign them work permits allowing them to obtain social security numbers, pay taxes, and become part of the mainstream economy. This program received the title “Deferred Action for Childhood Arrivals” — DACA for short. In 2017, however, after the national election and change in administrations, the agency eventually reversed itself and began a phase-out of DACA. All agree that a new administration is entitled to replace old policies with new policies so long as they comply with the law. One question presented in these related actions is whether the new administration terminated DACA based on a mistake of law rather than in compliance with the law.
After a lengthy and detailed analysis, Judge Alsup granted provisional relief.
… defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.
Nothing in this order prohibits the agency from proceeding to remove any individual, including any DACA enrollee, who it determines poses a risk to national security or public safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency from granting advance parole in individual cases it finds deserving, or from granting deferred action to new individuals on an ad hoc basis.
One of the findings Judge Alsup made as a precursor to granting the injunction is that the plaintiffs (the DACA recipients) are likely to prevail on the merits. This has further enraged the Right, which claims that a program approved by one president may be disapproved by a succeeding one. That is true.
However, that is not what the administration did. Instead, Attorney General Sessions decided that the program (a deferred action) was somehow illegal. As Judge Alsup painstakingly points out (beginning on Page 29 of the order),
The agency action was “not in accordance with law” because it was based on the flawed legal premise that the agency lacked authority to implement DACA. When agency action is based on a flawed legal premise, it may be set as aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Massachusetts, 549 U.S. at 532 (setting aside the EPA’s denial of a petition for rulemaking under the Clean Air Act for supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007). This order holds that DACA fell within the agency’s enforcement authority. The contrary conclusion was flawed and should be set aside.
In other words, Sessions blew it. Instead of simply reversing the Obama administration’s 2012 memo, he decided to call it an illegal order.
Interestingly, none of the critics whose comments I have read so far seem to have bothered to read the document.
For example, Ken Gardner, with whom I almost never agree but whom I respect, said,
@gracels @GoldSaltFlour What I totally don’t see is the “likelihood of success on the merits” requirement for any injunctive relief. Presidents don’t have to justify rescinding executive orders. https://twitter.com/KenGardner11/status/951173351019569153
Of course, the deferred removal program was not an Executive Order, as Judge Alsup’s Order makes clear on the first page.
Additionally, Judge Alsup is following Mr. Trump’s wishes, as reported by the Washington Post.
“We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended,” the judge wrote. “For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.”
Which brings me to the premise that Judge Alsup is the only grownup in the room. Everyone wants the Dreamers to stay: Trump himself, the overwhelming majority of Americans, the Democratic Party, in fact everyone but perhaps Steve Bannon. It seems very likely they will win in the political arena, even if the price is the silly wall.
So kicking them out (or making their lives miserable) while a solution is being crafted is, to use accepted legal jargon, just nuts. Judge Alsup recognizes this. In other words, he’s telling Sessions to chill while things are worked out.
Seems eminently reasonable to me.