Deconstructing the DACA Decision.
Another Court Slaps The President’s Immigration Policy and Trump Responds With Typical Twitter Petulance.
On January 9th the United States District Court for the Northern District of California issued a decision invalidating the Trump Administration’s decision to end the “Deferred Action for Childhood Arrivals” (DACA) program. DACA deferred prosecution, or efforts to remove certain people who illegally entered the country as children, about 800,000 people often referred to as “Dreamers.” It provided no path to citizenship but did allow a recognized status that allowed such Dreamers to often get driver’s licenses, serve in our military, and identification that allowed them to pay taxes. It also allowed them to get advance approval to leave the country temporarily and return.
On September 5, 2017 Attorney General Jeff Sessions announced the program would be repealed. Sessions characterized the Dreamers as “lawbreakers” stealing jobs from Americans. It’s helpful to remember that the “lawbreakers” were children under the control of their parents when they entered the country. Sessions said actual implementation of the repeal would be delayed six months. With that March 5 deadline looming the District Court today said the Trump Administration would have to continue processing DACA applications from existing dreamers after that date. Trump angrily tweeted with his typical contempt for the courts.
The Basis for the Judge’s Decision.
You can read the 49 page decision here and judge for yourself. Contrary to the President’s typical inability to see the other side, the decision is not some sort of overreaching judicial incredulousness. While I believe it could have gone the other way, that the judge ruled in this manner is not unreasonable.
First, the Plaintiffs (advocating for the Dreamers) had a difficult and high standard to overcome. To get this temporary injunction they had to prove they were likely to prevail on whether the decision to rescind DACA was “arbitrary and capricious,” essentially wholly unreasonable and unjustified. Put another way, the Defendant’s (the Trump Administration) need only show their position is plausible and they win.
At it’s core the decision is really quite simple. Overcoming the arbitrary and capricious standard is difficult (though I have done it on a fair number of occasions). One way to do it is to show the decision rested on a false legal premise. If the basis for the decision is that the law says X, when in fact the law says the opposite, then decision no longer has a credible basis and is arbitrary and capricious.
In this case, Attorney General Sessions said a legal premise was the basis for his decision to rescind DACA. That premise was that DACA was illegal to begin with. The primary basis for Sessions’ claim that DACA is illegal is that the 5th Circuit declared illegal a related, but still very legally distinct, program for adults (the Deferred Action for Parents of Americans, or “DAPA”). In this case, decided in 2015 (well before Trump became President), the 5th Circuit found DAPA inconsistent with Immigration and Naturalization Act and procedurally defective in its promulgation because the Obama Administration implemented it without the required “notice and comment” required by the Administrative Procedures Act.
This judge found the 5th Circuit’s arguments for declaring DAPA illegal did not apply to DACA. Accordingly, the legal premise Sessions used as the basis for the rescinding DACA was false. That left no basis for the decision rendering it arbitrary and capricious. Particularly with discovery still incomplete (see below) the Plaintiffs were entitled to a temporary injunction because a final decision would not be possible before March 5 after which Plaintiffs would suffer irreparable harm by loss of their DACA status.
There were a lot of reasons for the judge to conclude that DACA was different from DAPA, to include actions by the Trump Administration. Notwithstanding the 5th Circuit’s DAPA decision in 2015, in February 2017 Trump’s Secretary of the Department of Homeland Security John Kelly extended DACA. How could he do that if it was illegal? For that matter how could Attorney General Sessions extend it another six months to March 5 of this year if it was utterly illegal from get go?
Trump’s Tweets Undermine Another Legal Case.
What I love is this is yet another case where Trump’s tweets undermined his own legal case where he then throws a Twitter tantrum when he loses. The judge quoted these tweets:
In balancing the equities and public interest involved (as required for a temporary injunction) the judge turned Trump’s tweets against the government saying:
“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 . . . 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.”
More Trump Tweets To Come In Later Proceedings?
Even more fun, the judge cited another tweet in leaving open the possibility that further review of the temporary injunction may also harm the Administration’s position. Early in the decision the judge expressed considerable frustration that the government reneged on an agreement to produce the full administrative record in the case. The government later sought to declare hundreds of pages of the relevant administrative record privileged. Appeals of that question led to the District Court being ordered to rule on the government’s motion to dismiss on jurisdictional grounds before proceeding with discovery.
The court did that with this decision rejecting government arguments related to Plaintiffs lack of standing and that the court had no subject matter jurisdiction over the issue. So now the District Court is free to follow through on its prior ruling that the government produce those documents. In that regard, the judge said:
Plaintiffs are entitled to learn of all flaws, if any more there be, lurking in the whole record. One such possibility suggested by plaintiffs is that the rescission was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA. A presidential tweet after our hearing gives credence to this claim.
The judge is referring to this Presidential tweet just a couple of weeks before this decision:
Since the issuance of the decision the President has added to this with a pair of tweets providing more credibility to Plaintiffs’ claim:
The point here is that rescinding DACA to create a political bargaining chip is an arbitrary and capricious basis to do so. Administrative action on DACA must be considered on its own merits and not its value as a bargaining chip to gain unrelated concessions from Democrats in Congress for a wall. From the beginning I argued that getting this bargaining chip was the real reason Trump rescinded DACA. There is a reason the government resisted discovery of the full administrative record. That reason very likely is the record reveals exactly this impermissible factor as the real basis for the decision.
The judge noted one other potential element Plaintiffs were entitled to see from discovery of the full administrative record. Plaintiffs alleged the DACA revocation was rooted in racial animus. The judge declared the Plaintiffs were entitled to see the Administration’s deliberations of the issue because “these theories deserve the benefit of the full administrative record.”
The motivation of religious animus was one of the reasons Trump’s initial travel bans were struck down by the courts. Trump’s public statements and tweets weighed heavily in those cases too. As is true in this case, Trump’s tweets after initial rulings against him continued to make arguing the case more difficult for his attorneys. Trump’s public comments and tweets also undermined the prosecution of Sergeant Bowe Bergdahl by exhibiting unlawful command influence.
Trump’s worst legal enemy is not the courts, it’s Donald Trump’s big immature mouth and his Twitter account.