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Court orders full restoration of DACA program

part 2 of 3 parts

On January 25, 2017, President Trump issued Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.” In that Order, the President directed federal agencies to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens,” and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” except as provided in the Department’s June 15, 2012 memorandum establishing DACA,[6] and the November 20, 2014 memorandum establishing DAPA and expanding DACA.[7]

On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA—but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program.

Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.

The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.

Rescission of the June 15, 2012 DACA Memorandum
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.
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on to part 3
 
part 3 of 3 parts

Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:

Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
This document is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.
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https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca
the judge held
... the court considers only whether the agency's decision "was the product of reasoned decisionmaking." If the agency decision "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made," the court will uphold the agency's decision. ...
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from the rescission memo, that reasoned decision making should have been found
 
apdst said:
DACA isn't lawful. A judge can't order the enforcement of an unlawful EO.
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apdst said:
I don't need to.

1. DACA is unlawful.

2. A judge can't order it to be reinstated.

Period.
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apdst said:
DACA was never lawful. The government doesn't have to give notice that it's suspended. The APA doesn't apply.

A judge can order an unlawful program fully restored? Bull****.
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You need citations. Which of course leaves you stranded as always cause there aren't any. Not in all of jurisprudence are there any citations to support these extreme views that are both arbitrary and capricious thx.




apdst said:
The APA applies to laws. DACA was never a law. The judge is ruling on DACA as if it is a law.
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You are arguing the case Obama lost in 2015 in the US District Court in Texas. The court ruled APA applies to policy also. Dapa was policy, not law. So the court ruled the Dapa policy and program established by DHS was subject to the APA. This was new, i.e, APA applying to policy. Policy and law. The 5th circuit appeals court upheld the judge. Scotus declined to hear Obama's appeal petitioned by DHS. Obama's DHS (Napolitano) lost on the policy argument and now Trump's DHS (Kelly) has lost on the identical argument, i.e., policy.

Continuing...

Last year the district court in SFO made the same ruling in Daca, i.e., Daca is policy and APA applies to policy as well as to law. Now a district court in NYC has made the same ruling in the same instance. Scotus meanwhile has so far declined to bother itself with this, allowing instead the 5th Circuit affirmation of the Texas court to stand.

So those who believe or hope the judge's injunction in the OP would be stayed or quashed are likely hoping against hope. Neither appeals circuit is likely to counteract either judge. Scotus seems to have higher priorities than the political questions that drive immigration policies. The district courts and the circuit courts of appeals are enforcing the APA in immigration policies so things appear to be well under control. And we all agree Trump needs to obey and enforce the laws.

Equal justice under law, equal protection of the laws. Which means the policies under the laws apply in all 50 states and to all persons throughout the land. Right or wrong, GW opened Guantanamo to exempt certain people from the protections. Let's not extend that.
 
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Mason66 said:
This judge is ordering this administration to reinstate an Obama executive order?

How does he think he can do that?

Is it wrong for Trump to want the legislature to vote on it?
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Good job judge. Now it will expire before any decision is made.
 
poweRob said:
Just so we all aren't being led by the nose by the Washington Times... let's add what the judge actually said..


"Defendants indisputably can end the DACA program," Garaufis wrote, referring to the Trump administration. "The question before the court is thus not whether defendants could end the DACA program, but whether they offered legally adequate reasons for doing so. Based on its review of the record before it, the court concludes that defendants have not done so."

The judge said that the decision to end the program was based in part on the "plainly incorrect factual premise" that the program was illegal.​

https://www.cnn.com/2018/02/13/politics/federal-judge-daca/index.html
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I don't understand why you would need legally adequate reasons to end a program that has an expiration date.
 
ludin said:
the agency policy was derived from the EO. without the EO there is no policy that could have been implemented.
that is the problem with issuing EO's that are unconstitutional. Everything that comes out of that EO loses it's power as soon as the EO
is rescinded.

The only reason that is required in this case is that the president has the power to rescind the EO.
any policy that is derived from that power losses it once the EO that authorized it is gone.

IF this had been passed by congress then the judge would have been possibly correct although it would have taken an act of congress to repeal it.
that is the problem ruling their fiat.
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That's not true at all. The DACA implementation through Janet Napolitano's memo, this one, stands on it's own. It is not connected to, nor does it need an executive order to survive.

Trump's DHS is well within it's rights to end the program. It attempted to do so through, Acting Secretary Duke's memo, here. It cites Trump's executive order as a reason for why it is doing what it is doing, but it did not need Trump's executive order to exist and if Trump were to rescind his Executive Order No. 13,768, this action instituted by Duke would not suddenly not exist.

Because this is an independent agency action, it is reviewable under the APA, and there must be a legitimate, non-arbitrary and capricious reason behind it.

You are misstating how administrative law works when you are only talking about the executive orders here.
 
apdst said:
The agency policy was born out of the EO. The EO and thereby the agency policy are unlawful.
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Whether an executive order or agency policy is unlawful is not relevant to whether another agency action is subject to the APA. DACA being unlawful would go to the legitimate reason for the agency policy rescinding it.
 
Vetplus40 said:
You are simply "eat up" with Trump worshipping. Have a great evening.
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Thank you for your 2nd concession, but you're embarrassing me with all your groveling.
 
Tangmo said:
Anarchy and nihilism are presented in the posts.

Authoritarianism.

Uniquely American Fascism.
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Sorry, McCarthy. You're seeing nothing but shadows created by your own imagination. The judge was out of line and is overreaching.
 
Fishking said:
Sorry, McCarthy. You're seeing nothing but shadows created by your own imagination. The judge was out of line and is overreaching.
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My post was a rejection of some posters saying Potus should ignore the ruling and proceed.

And to call out some posters who because they disagreed said the judge is incompetent and should be removed.

There's nothing fishy or royal in the fact my username is Tangmo thx.
 
I fully support DACA and don’t want it revoked. That is where I am coming from politically. That said, I have a problem with this ruling, legally speaking. I would hate it if Trump revoked DACA but it seems perfectly in his constitutional power to do it.
 
Tangmo said:
My post was a rejection of some posters saying Potus should ignore the ruling and proceed.

And to call out some posters who because they disagreed said the judge is incompetent and should be removed.

There's nothing fishy or royal in the fact my username is Tangmo thx.
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The courts aren't the kings of the government. They are 3 equal branches and the courts have way overreached their bounds for a long time.
 
apdst said:
The APA applies to law.
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:lamo







The APA governs executive agencies in their quasi-legislative, quasi-judicial, and other functions. It is a constraint the legislature placed on executive agencies.
 
Fishking said:
Sorry, McCarthy. You're seeing nothing but shadows created by your own imagination. The judge was out of line and is overreaching.
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Tangmo said:
My post was a rejection of some posters saying Potus should ignore the ruling and proceed.

And to call out some posters who because they disagreed said the judge is incompetent and should be removed.

There's nothing fishy or royal in the fact my username is Tangmo thx.
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Fishking said:
The courts aren't the kings of the government. They are 3 equal branches and the courts have way overreached their bounds for a long time.
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Some posters said Potus must ignore the court to do as he pleases on Daca.

Some posters who also disagreed with the court said it means the judge is incompetent and should be removed. On the basis of the opinion in the ruling per se.

Your posts are also OTT in the matter. The give Trump a chance what have you got to lose rhetoric has instead become a license to run amok. Or to give it the old college try. The rhetoric looks more like the entree' to a bad feed of indigestion gone fast and loose.
 
Tangmo said:
Some posters said Potus must ignore the court to do as he pleases on Daca.

Some posters who also disagreed with the court said it means the judge is incompetent and should be removed. On the basis of the opinion in the ruling per se.

Your posts are also OTT in the matter. The give Trump a chance what have you got to lose rhetoric has instead become a license to run amok. Or to give it the old college try. The rhetoric looks more like the entree' to a bad feed of indigestion gone fast and loose.
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Yes, I said that Trump should ignore the judge's rulings because they are illegal and an overreach. A judge doesn't get to force the current Executive to follow the orders of the previous Executive. If a judge ruled on DACA at all it should have been to strike it down as the original EO is the only thing that is unlawful, as it undermines the legislative branch.
 
Fishking said:
Yes, I said that Trump should ignore the judge's rulings because they are illegal and an overreach. A judge doesn't get to force the current Executive to follow the orders of the previous Executive. If a judge ruled on DACA at all it should have been to strike it down as the original EO is the only thing that is unlawful, as it undermines the legislative branch.
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It's not an Executive Order a judge ruled on, it's an administrative action.There's a process prescribed by the APA in order to eliminate predecessor's administrative actions. It's somewhat harder than getting rid of executive orders which can be rescinded at will, and is especially hard when an agency must engage in rule-making in order to end a previous administration's actions because then they must go through notice-and-comment. It's why each administration does as much rule-making as possible in the last few months, because it actually is a process to get rid of them.

Now notice-and-comment hasn't been held to be required here by this judge, but it still requires agency action through Acting Secretary Duke's memo. And that must be done with reason given by the Department of Homeland Security, and that reason must not be arbitrary and capricious. The judge here ruled that the Agency's reasons did not meet that standard.

It's perfectly acceptable to disagree with that part of the ruling, (I think I would), but it really is not as simple as you make it out to be.

Edit: And I strongly disagree with undermining our legal system by just refusing to follow the order. There are plenty of legal processes to follow if the Trump administration thinks the ruling was made in error, not least of which is they could just provide a different reason for ending the policy.
 
Anagram said:
Edit: And I strongly disagree with undermining our legal system by just refusing to follow the order. There are plenty of legal processes to follow if the Trump administration thinks the ruling was made in error, not least of which is they could just provide a different reason for ending the policy.
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You have it backwards. What you should be saying is, "I strongly disagree with undermining our legislative system by writing a policy that undermines the law of the land when your job as the executive is to enforce the laws."

Only the legislative branch can change or make amendments to laws and that is the only foul that would occur. When the judicial branch is dead-wrong, due to activism, they should be slapped down. They are not legislators either, yet they continually act like them. There is only one legislative branch, and that is the Congress.

It's actually very simple. An EO is merely a policy governing how they run the various branches of the executive branch (that's what they should be, anyways). There is no condition on changing policy so long as it doesn't violate the law. They are not laws.
 
Fishking said:
You have it backwards. What you should be saying is, "I strongly disagree with undermining our legislative system by writing a policy that undermines the law of the land when your job as the executive is to enforce the laws."

Only the legislative branch can change or make amendments to laws and that is the only foul that would occur. When the judicial branch is dead-wrong, due to activism, they should be slapped down. They are not legislators either, yet they continually act like them. There is only one legislative branch, and that is the Congress.
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The judicial branch has avenues to deal with incorrect rulings. Especially in the case of not utilizing those avenues, deliberately ignoring the valid, if incorrect rulings of the judicial branch, undermines our entire political system.
 
Anagram said:
The judicial branch has avenues to deal with incorrect rulings. Especially in the case of not utilizing those avenues, deliberately ignoring the valid, if incorrect rulings of the judicial branch, undermines our entire political system.
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That's what you're missing. It is already undermined itself.
 
Fishking said:
That's what you're missing. It is already undermined itself.
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Then change the system. Giving the executive branch the ability to ignore the rule of law because they believe the rule of law is wrong is incredibly dangerous.
 
Anagram said:
Then change the system. Giving the executive branch the ability to ignore the rule of law because they believe the rule of law is wrong is incredibly dangerous.
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It's not ignoring the rule of law. You're still missing it. There is no law being violated here. EOs are not laws, they are merely policies on how to run the various branches. That's it, full stop. What EOs are not, is a law unto themselves, a power that can be used to change or undermine an actual law (what DACA itself did), ect.

There is literally no law being violated. None. The only opening for the judicial branch to step it is if a new EO were to be put in place that stepped beyond it's proper authority, again we're back to DACA in the first place. The judicial branch doesn't get to intervene in executive administrative actions otherwise. In other words, they have no standing here.
 
Fishking said:
It's not ignoring the rule of law. You're still missing it. There is no law being violated here. EOs are not laws, they are merely policies on how to run the various branches. That's it, full stop. What EOs are not, is a law unto themselves, a power that can be used to change or undermine an actual law (what DACA itself did), ect.

There is literally no law being violated. None. The only opening for the judicial branch to step it is if a new EO were to be put in place that stepped beyond it's proper authority, again we're back to DACA in the first place. The judicial branch doesn't get to intervene in executive administrative actions otherwise. In other words, they have no standing here.
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This case has nothing to do with an executive order. Quite literally nothing.

The judiciary absolutely has standing to decide this case because it deals entirely with agency action implemented by the Department of Homeland Security with Acting Secretary Duke's memo which wound down the DACA policy implemented by the Department of Homeland Security with former Secretary Janet Napolitano's memo. All agency action is legislatively subject to judicial review under the Administrative Procedure Act.

It is simply untrue that this court had no authority to review the agency decision and that it was dealing with either President Trump or President Obama's executive orders.
 
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