DACA and the Politicization of the Courts

As the immigration battle rolls on in Congress, the Supreme Court decided last week not to take up a District Court ruling that blocks President Trump from deporting those illegally in America who are covered by the Deferred Action for Childhood Arrival (DACA) program.  This decision follows an appeal from the Trump administration after a second federal judge from the Eastern District of New York blocked President Trump from ending DACA protections earlier this month. 

Unsurprisingly, it was the Northern District of California in January that first blocked the Trump administration's efforts to end the program. The decision of the Supreme Court will leave DACA protections in place for the time being, as the District Court's decision will inevitably make its way through the Circuit Courts.

Though this is a temporary setback for the Trump administration, we've seen this story unfold before.  After President Trump rolled out his travel ban, it was almost immediately that groups challenged the ban in federal court.

Despite clear constitutional authority for what President Trump wanted to do with a temporary moratorium on travel from certain high-risk areas, judges in the 9th Circuit Court prohibited the travel ban to be put in place as we overhauled our vetting system.  It was a policy that many disagreed with on moral grounds.  The judges, on what is considered a very liberal Ninth Circuit, looked for anything they could find in order to justify their ruling.  This included the atypical decision to use comments from President Trump while he was on the campaign trail to bolster their position. 

What President Trump and Americans across America should take note of is the continued desire of certain courts to inject their personal feelings toward a policy decision that results in a decision divergent from the Constitution. 

The DACA program has allowed over 800,000 individuals who are illegally in America to have "discretionary relief from deportation."  The program was created through a 2012 Obama administration policy from the Department of Homeland Security, not through law in Congress.  While it may be up for debate whether the Obama administration had the authority to create DACA, what should not be up for debate is President Trump's authority to rescind it. 

Article II of the Constitution grants a president executive power.  Additionally, it designates him the head of the executive branch of government.  As such, the president has the authority to exercise discretion over the executive branch of government, under which the Department of Homeland Security falls.  It is under this authority that the DHS was able to issue the DACA program. 

Because DACA was not passed through Congress, but was merely the product of executive authority, President Trump has the authority to reverse it.  Traditionally, presidents have been granted broad executive authority.  It is not uncommon for a president to overturn the executive order of a previous administration through an executive order of his own, which is exactly what President Trump attempted here.

However, in the most recent decision blocking President Trump from ending the DACA program, Judge Nicholas Garaufis of the Eastern District of New York cited the Administrative Procedure Act (APA).  The judge used this to review the Trump administration's reason for ending DACA, not whether he has the right to do so.  Determining if President Trump had adequate reason for ending the program under the APA is a creative way to avoid having to rule based on President Trump's authority to end DACA. 

To see a judge use a roundabout way to reach his desired conclusion is not necessarily new or surprising.  What is surprising is a newfound willingness to grandstand, from lower courts in particular, and to ignore clear constitutional authority because the policy at issue differs from their political ideology.

Under the arbitrary and capricious standard analysis of the APA, an agency must be able to justify its policies by neutral principles.  The Trump administration argued that the DACA program was unconstitutional to begin with, which the court disagreed with as a legal conclusion.  Still, it seems hard to imagine that ending a program in order to better comply with federal law concerning deportable aliens would not be sufficient justification. 

Practically speaking, the federal courts blocking DACA serves only to take the deadline away from Congress.  In today's political world, Congress doesn't get anything done unless it is up against a hard deadline. 

Even as President Trump continues to fill judicial vacancies through the country, we have seen an uptick in federal judges ruling based more on ideology than merit.  It is a trend we should all be concerned with as Americans.  Should a DACA case make its way to the Supreme Court, the Court will in all likelihood rule in favor of the Trump administration.

President Trump knows that mass deportations would not be politically expedient, and it is a visual Democrats would love to run on in 2018.  Regardless of the outcome, I doubt we will be seeing mass DACA deportations anytime soon.

Evan Berryhill is a former communications staffer on Capitol Hill for Rep. David B. McKinley.  Currently, Evan is a second-year law student at West Virginia University and works as a freelance writer.