the law

Trump Ending DACA Was Never About the Law. A Federal Judge Noticed.

The judiciary strikes again. Photo: SHAWN THEW/Bloomberg via Getty Images

Rather than look Dreamers in the eye and tell them himself that they’re no longer wanted in the United States, Donald Trump dispatched his embattled attorney general to announce last September that their lifeline, the Deferred Action for Childhood Arrivals program, would be wound down. It was a cowardly play, but Jeff Sessions seemed delighted to be a good soldier and declare the initiative’s demise. The move was sparked by Republican officials from ten states threatening to sue the administration if it failed to shut down DACA, which Sessions had determined was unconstitutional anyway. Their justifications were thin at best.

More than four months later, and just as Congress seems close to a permanent fix for Dreamers, a federal judge in California has exposed the cravenness of the DACA rollback for what it was, declaring in a ruling late Tuesday that its cancellation “was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.” That’s administrative law-speak for doing something without putting much thought into the decision. U.S. District Judge William Alsup said Trump’s move would cause irreparable harm to hundreds of thousands of young undocumented immigrants unless the court stepped in.

And so he did, essentially ordering the Trump administration to unwind the wind-down of DACA and even telling the Department of Homeland Security to “post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order.” To be sure, Alsup’s ruling notes that his injunction only applies to those Dreamers who are already beneficiaries of the program — which means new applicants need not apply. But that alone is a significant and aggressive legal remedy that could potentially aid tens of thousands. There’s no doubt the Department of Justice will want this ruling blocked and appeal this all the way to the Supreme Court, which has already ruled on more technical aspects of the ongoing DACA dispute.

One remarkable aspect of Alsup’s decree is how it made quick work of the Trump’s administration’s legal basis, or lack thereof, to pull the plug on DACA. He wrote that the rescission rested on the “flawed legal premise” that President Obama and his DHS had no authority to implement the initiative in the first place. But exactly the opposite is true. As Alsup explains, “deferred action has been blessed by both the the Supreme Court and Congress as a means to exercise enforcement discretion” by presidents of both parties for decades, and features such as work authorization for DACA recipients are already amply allowed by current law. For an administration that likes to tout its adherence to the rule of law, Alsup seems unimpressed. “Significantly, the government makes no effort in its briefs to challenge any of the foregoing reasons why DACA was and remains within the authority of the agency,” he wrote. “Nor does the government challenge any of the statutes and regulations under which deferred action recipients obtain the foregoing benefits.”

Indeed, when DHS formally rescinded DACA, there was very little formal reasoning, let alone actual law, buttressing the agency’s determination. It stopped just short of simply declaring that it was following marching orders from Sessions, who never liked Dreamers that much anyway. Alsup noted the thinness of their rationale: “In sum, the new administration didn’t terminate DACA on policy grounds. It terminated DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority.” Which is to say: Calling something illegal doesn’t make it so just because you believe it in your heart. You need to show your work, which neither Sessions nor DHS seems to have done very convincingly.

The judge also took issue with something I flagged when Texas and nine other states issued a deadline for Trump to do away with DACA: that threat was manufactured, pretextual, and a likely loser in court. The details are kind of wonky, but the short version is that DACA had already survived every legal challenge leveled against it, remained operational for five years, and created an expectation on its beneficiaries that it wouldn’t be pulled out from under them without at least a semblance of process. Given these factors, the Trump administration had every reason to be confident that it would prevail against a court challenge by Texas, and not simply throw up its arms and offer as pretext that the litigation risk was too big a price to pay. To Alsup, all of this is pure “spin” and “post hoc rationalization” that was arbitrary and capricious.

As satisfying as this massive court ruling feels, it’s only temporary in nature, vulnerable to a conservative-leaning Supreme Court, and likely to throw gasoline into the ongoing discussions to legalize Dreamers once and for all. The judge acknowledged that his ruling was all the more strange because Trump “publicly favors the very program” he ended, which in turn justifies leaving it in place until Washington figures out how to sensibly deal with it. Just hours before the decision dropped, Trump tweeted that “DACA approval” — by which he means permanent legislation addressing the status of Dreamers — will only be possible if Congress also gives him a wall for the southern border. That’s just him, once again, looking away rather than staring a problem right in the face.

Trump Ending DACA Wasn’t About the Law. A Judge Noticed.