https://www.washingtonpost.com/local/public-safety/federal-judge-in-dc-weighs-ordering-administration-to-restart-dreamers-program/2018/03/14/883b5178-27a7-11e8-bc72-077aa4dab9ef_story.html?utm_term=.b70de8a39e92

Spencer Hsu reports in the Washington Post:

“A federal judge said Wednesday that he is considering ordering the Trump administration to restart the “dreamers” program and accept new applications for protection from deportation by undocumented immigrants brought here as children.

Such a ruling by U.S. District Judge John D. Bates in Washington would go further than federal district judges in California and New York have when they issued nationwide injunctions blocking the government’s plan to rescind the Deferred Action for Childhood Arrivals program, or DACA, this month.

The injunctions, issued after lawsuits by several states and organizations, require the Department of Homeland Security to continue to accept DACA renewal requests from about 800,000 people in the program but not to process new applications.

Bates spoke near the end of a two-hour-long hearing Wednesday on two lawsuits seeking to overturn the administration’s ending of DACA in cases brought by the NAACP, Microsoft, Princeton University and a student.

The judge’s remarks came as White House officials told key Republican leaders that President Trump is open to cutting a deal in an upcoming spending bill to protect the dreamers in exchange for border-wall funding.

[Trump is open to short-term DACA deal, White House tells GOP leaders]

No appellate court has reviewed the earlier court decisions, and the Supreme Court last month declined to enter the national controversy for now when it turned down a Trump administration request to immediately consider the decisions.

[Supreme Court declines to enter controversy over ‘dreamers’]

In Washington on Wednesday, Bates appeared skeptical of Justice Department arguments that he dismiss the lawsuits because immigration authorities have discretion and do not need a court review when it comes to deciding to halt a “non-enforcement” policy.

Bates said, “You have been unsuccessful in three other courts with this argument, correct?”

“Yes, your honor,” Justice Department trial attorney Brinton Lucas replied.

A federal judge in San Francisco ruled in January that challengers to the administration probably were correct in their contention that ending DACA violated the Administrative Procedure Act, because it is arbitrary and capricious. A federal judge in Brooklyn reached a similar finding in February. Both judges issued injunctions.

[With three months left in medical school, her career may be slipping away]

Justice Department trial attorney Kathryn Davis told Bates that the administration ended the program because of the threat of legal challenges from a coalition of states led by Texas and a belief that the program created in the Obama administration could not be successfully defended in court.

Noting that explanation, Bates then asked why the change was presented to the government as a policy shift and not a legal conclusion by the Homeland Security and Justice departments. Bates questioned that legal conclusion given a 2014 Justice Department decision.

Noting the Washington court’s expertise in federal regulatory law, Bates sounded skeptical about whether issuing another nationwide injunction would be appropriate.

Local Crime & Safety Email Alerts

Breaking news about public safety in and around D.C.

Sign up

Rather, Bates said it might be better to strike down or vacate DHS’s attempt to end the program — which would oblige the government to continue to accept new DACA applications while the administration decides whether to try again to cancel DACA but with a fuller justification for the change in position.

Davis, the Justice attorney in court, opposed taking that course of action, saying it would create “undue chaos.”

Lindsay C. Harrison and Joseph M. Sellers, the plaintiff’s attorneys, said allowing new applications would not be disruptive because it would simply restore the status quo.”

*******************************************

The Administration’s legal problems here start, not surprisingly, with AG Jeff Sessions.

Sessions told then Acting DHS Secretary Elaine Duke that the Obama Administration’s DACA program “an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Without any meaningful legal analysis, he summarily concluded that the program inevitably would be successfully challenged in Federal Court by some of his White Nationalist cronies serving as state Attorneys General.

The problem is that the DACA program had never been invalidated on legal grounds. The Fifth Circuit’s order invalidating the different although somewhat related “DAPA Program” was affirmed without opinion by an “equally divided Supreme Court” (a decision having no precedential effect).

There certainly was a strong legal basis for defending DACA that was totally ignored by Sessions. This includes a lengthy DOJ Office of Legal Counsel memorandum prepared during the Obama Administration that certainly was more thoughtful and thorough than the “Sessions letter.” Indeed, even the single U.S. District Judge who upheld the Administration’s DACA termination found that the legal issue was one upon which reasonable minds could differ.

So, basically, Sessions was arguing that the Federal Courts should hold that the Executive Branch is legally without authority to exercise so-called “prosecutorial discretion” in immigration cases.  That’s facially absurd as a legal proposition, and a stunningly dumb argument for an Executive Branch official to make. This Administration, like all others, exercises large-scale “prosecutorial discretion” daily. How many actions is Scottie “Make Me AG If You Don’t Fire Me First” Pruitt at EPA taking to enforce existing environmental laws and regulations? How’s Ol’ Gonzo himself doing on enforcing those Civil Rights laws to protect minorities? How about the enforcement of those ethics laws applicable to Cabinet members and other Trump politicos? 

Realizing the problem, it appears that in defending the Administration’s actions the DOJ lawyers “subtly switched” their argument to say that the Administration had “discretion” to terminate the DACA program. That’s actually a better argument than the one Sessions made to Duke. After all, if the Obama Administration had essentially unreviewable prosecutorial discretion to institute DACA, why can’t the Trump Administration exercise the same prosecutorial discretion negatively to terminate the program?

But, that position also raises some big problems.

• First, it requires the Administration to admit, at least inferentially, that DACA was a proper exercise of prosecutorial discretion by the Obama Administration. That’s hard for them to do, since Sessions’s position was based on a bogus White Nationalist political argument and Trump campaign rhetoric that DACA was “unconstitutional” rather than on any careful objective analysis of the law (something that as far as I can tell, Jeff Sessions has never engaged in during his public career).
• Second, it ignores the facts of the case. The “Sessions letter” to Duke did not purport to be based on a different “policy determination” regarding DACA. Rather it contained typical unsupported disingenuous Sessions’ pontificating about the law and his duty to uphold it. This is a joke on its face from probably the most “lawless” Attorney General since John Mitchell. 
• Third, no Federal Court to date has found that this exercise of prosecutorial discretion is totally unreviewable. And, given that almost everybody in America except Jeff Sessions has acknowledged the merit of the “Dreamers” as a group, it’s doubtful that the Administration could come up with even a “minimally rational” reason for terminating the program.

Several weeks ago, Judge Roger Titus of the US District Court in Maryland basically “tossed the Administration a lifeline.” He effectively “re-jiggered” the facts to find that the Sessions letter combined with Duke’s reaction constituted a “reasonable discretionary determination” to terminate DACA in light of the possible legal difficulties it might face in court.

The only problem with Judge Titus’s ruling is that’s not what Sessions and Duke actually did. We should also remember that even in upholding the Administration, Judge Titus basically found that the Administration had probably chosen the least palatable of the policy choices available to it. Hardly a “ringing endorsement,” despite the “favorable spin” put on the ruling by the DOJ.

So, stay tuned! But, don’t be shocked if Judge Bates hands the Administration another DACA defeat — this time one with potentially larger impact since it would require the Administration to allow new DACA registrations, not just adjudicate renewals of existing ones.

PWS

03-16-18