Judge bosses Trump, rules DACA must continue

A federal judge has decided he doesn't like his job very much.  So he has taken off his robes and assumed the office of president of the United States.

No?  Not possible?  Tell that to District Judge John Bates who ruled yesterday that he, not the president, decides how to enforce the immigration laws of the United States.


DC District Judge John Bates said the Trump administration still has failed to justify its proposal to end DACA, the Obama-era program that has protected from deportation nearly 800,000 young undocumented immigrants [sic] brought to the US as children.

But Bates agreed to delay his ruling for 20 days to give the administration time to respond and appeal, if it chooses.

The ruling sets up potentially conflicting DACA orders from federal judges by the end of the month.

The decision comes less than a week before a hearing in a related case in Texas.  In that case, Texas and other states are suing to have DACA ended entirely, and the judge is expected to side with them based on his prior rulings.

Previous court rulings in California and New York have already prevented the administration from ending DACA, but they only ordered the government to continue renewing existing applications.  Bates' ruling would go further and order the program reopened in its entirety.  The earlier decisions are pending before appeals courts.

Bates on Friday upheld a ruling he had issued in April that ordered the administration to begin accepting DACA applications again.  He had postponed that order for 90 days to give the government time to offer a better legal justification for its decision last September to end the program.

The argument used by the Obama administration to justify DACA in the first place was that the executive has complete authority to choose how to enforce U.S. immigration law.  In the Obama administration's case, the executive chose not to prosecute two million or so children of illegal aliens and some of their families. 

Now the chief executive has decided to change how illegal aliens are prosecuted to include the children of those in the country illegally.  But Judge Bates is denying the executive this power. 

The Department of Homeland Security followed up by largely reiterating its previous argument: that DACA was likely to be found unconstitutional in the Texas case if it were challenged there and thus it had to end.  Homeland Security Secretary Kirstjen Nielsen also said in the DHS response that the agency had the discretion to end the program, as much as its predecessors had the discretion to create it.

Bates, a George W. Bush appointee, found that explanation unsatisfactory, and said the DHS could not invent a new justification for his court, either.  He said most of the arguments "simply repackage legal arguments previously made" and fail to pass muster.

"Although the Nielsen Memo purports to offer further explanation for DHS's decision to rescind DACA, it fails to elaborate meaningfully on the agency's primary rationale for its decision," Bates wrote.  "The memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA's rescission, but this reason was articulated nowhere in DHS's prior explanation for its decision, and therefore cannot support that decision now."

Bates is denying the executive discretionary powers to prosecute simply by saying he doesn't understand the argument and thinks the DHS is using "logically dubious" justification for ending the program.  This seems radically subjective and consciously biased to me.

Obviously, this argument is going all the way to the Supreme Court.  But it sets up an interesting problem: does the court take the Texas case or Bates's?  Or both?  SCOTUS could rule more broadly if it took the Texas case, but if the justices were of a mind to dissect the issue, they may take on Bates's ruling.

Either way, it will be at least a year before the fate of DACA recipients is decided.

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