A Win For Judicial Deference Is A Loss For Dreamers.

Dreamers had been on a roll winning two cases that held the President’s decision to rescind DACA was arbitrary and capricious. At the time I said these decisions were reasonable, close calls that “could have gone the other way.” Now another judge, in the United States District Court for the District of Maryland, has gone the other way. The decision does not alter the nationwide injunctions against enforcing the President’s DACA rescission. They remain in effect and are under appeal.

The status of this issue as a close call is reflected in a well written legal opinion in Casa De Maryland v. Department of Homeland Security supporting the President’s authority to rescind DACA protections. Judge Roger Titus, a 2003 Bush appointee, addressed the other decisions, against the President, but applied a more discretionary legal standard to reach a different result.

The other courts held that the President rescinded DACA based on a wrong conclusion of law, that DACA was illegal. Since that was the basis for the decision, and those courts determined that basis was wrong, those courts ruled the decision was arbitrary and capricious even if otherwise within the President’s authority to do.

Judge Titus applied a more deferential standard. While seeming to accept that Administration’s legal conclusion was wrong, Judge Titus found the Administration’s conclusion that DACA was illegal to be a reasonable conclusion even if ultimately wrong. Judge Titus said that under the appropriate legal standard the question is not whether the legal conclusion was right, but rather, whether right or wrong, a reasonable position.

Concluding that it was reasonable, even if ultimately wrong, the judge determined the Administration acted within its discretionary authority.

Along the way, Judge Titus had some harsh words for President Trump:

“Complicating the picture for some observers is the unfortunate and often inflammatory rhetoric used by President Trump during the campaign, as well as his Twitter pronouncements, both before and after his election. Thoughtful and careful judicial review is not aided when the President lobs verbal hand grenades at the federal courts, the Department of Justice, and anyone else with whom he disagrees.”

In dismissing this concern, the judge determined that however “disheartening or inappropriate as the President’s occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission.

The judge also made clear his disdain for the result of the case:

The result of this case is not one that this Court would choose if it were a member of a different branch of our government. An overwhelming percentage of Americans support protections for “Dreamers,” yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, “a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”

This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.

For those seeking a classic case in judicial deference, you have it here.

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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