Federal Judge Upholds DACA, Calling White House Decision To Rescind It 'Capricious'

[Anagram]

Every President enacts and rescinds policies. Heck, Obama changed policies concerning Obamacare whenever he felt like it.

Yeah. And they have to comply with the APA and other federal and constitutional laws. And if not they are challenged in court. Like Obama's EO expanding DACA which was challenged and struck down.

 

[sangha]

Yes. I believe that if any President uses his executive authority to suspend the enforcement of a law passed by Congress which has not been repealed by Congress or struck down as unconstitutional by the Federal Courts (or allows an administrative agency to do so), it is violative of the President's duties of office.

What if Congress explicitly grants the president the power to suspend enforcement of a law passed by Congress?

If Congress grants the power to suspend enforcement of a law, is it an improper exercise of his power if he suspends enforcement that law?

 

[holbritter]

Federal Judge Upholds DACA, Calling White House Decision To Rescind It 'Capricious'

Once again, a federal judge rules against the Trump administration's numerous attempts to terminate the DACA program.

Related: U.S. Must Keep DACA and Accept New Applications, Federal Judge Rules - The New York Times

Guess it goes to SCOTUS now.

 

[holbritter]

A judge that follows the law has to follow the APA. Therefore, rescinding Napolitano’s memo has to be done for reasons not arbitrary and capricious.

Who decides if they meet that criteria? It seems any political bias would interfere with a vague-'ish' definition.

 

[Anagram]

Who decides if they meet that criteria? It seems any political bias would interfere with a vague-'ish' definition.

Arbitrary and capricious is a common legal standard. It's not vague and is used for a great many federal statutes.

 

[holbritter]

It never fails.

Every time..........EVERY TIME.........a federal court issues a ruling that conflicts with the orthodoxy or biases of right wingers, we get the same dumb comments about "judicial activism" and "judges making the laws instead of interpreting them", etc........from conservatives, most (if not all) of whom never even bother to read anything more than a FoxNews op/ed.....or watch any more "news" than an episode of Hannity.....before commenting on the subject.

It never fails. "Judicial Activism" is just ANY decision that doesn't support the right wing agenda.

This is a conservative republican judge, appointed by G. W. Bush, who is TRYING (if anyone actually cares to READ the decision) to HELP the Trump administration. All he has basically done is tell the Trumpsters that their initial EO was written so poorly that it was indefensible. All they have to do is go back and follow the blueprint the judge just laid out for them.......and he is primed to rule in their favor on this.

This is yet another example of how the incompetence of the entire Trump administration....from POTUS on down....just keeps getting in the way. And it's also an example of how/why no one take seriously the "judicial activism" whining of conservatives anymore.

Oh, ease up. You probably didn't know the difference between the APA and an EO until Mr. Person explained it either.

 

[holbritter]

Arbitrary and capricious is a common legal standard. It's not vague and is used for a great many federal statutes.

And the judge decides?

 

[Anagram]

And the judge decides?

Pursuant to the standard criteria for what arbitrary and capricious is. Congress can always amend the APA if they think judges are doing it incorrectly. But under the APA it’s how judges are required to evaluate administrative actions.

 

[holbritter]

Pursuant to the standard criteria for what arbitrary and capricious is. Congress can always amend the APA if they think judges are doing it incorrectly. But under the APA it’s how judges are required to evaluate administrative actions.

Thank you.

 

[Mycroft]

And the judge decides?

Yep...he does. He has the ability to say, "I don't like your answer, so go away and don't come back until you have a better one."

At least, until it goes to the Supremes. They THEY'LL be the ones to tell him to go away.

 

[ludin]

That's not actually how it happened. There was no EO before DACA. DACA was implemented by a DHS memo. The only EO related to DACA was Obama's 2014 one 2 years after DACA was implemented, but that was halted by a federal court before being put into effect.

Which is unconstitutional on the grounds that DHS nor obama has the ability to change law.
only congress has the ability to change law.

Their policies have to work within the law.

therefore it is unlawful and the policy can be changed simply based on that fact.

 

[Anagram]

Which is unconstitutional on the grounds that DHS nor obama has the ability to change law.
only congress has the ability to change law.

Their policies have to work within the law.

therefore it is unlawful and the policy can be changed simply based on that fact.

DACA being unlawful would be a sufficiently good reason to change the law. The judge explicitly said so, and it certainly makes sense that that wouldn't be arbitrary and capricious.

But the government also can't just say something's unlawful, it actually has to show it. If the government could just be conclusory and say something is unlawful and rescind the policy, it would defeat the point of the APA. The government did not do a good job of providing its reasoning in the rescission memo where it should have. It did not cite any immigration law that DACA contravened. It incorrectly cited the DAPA decision in relation to DACA. It didn't cite anything about how the President is supposed to faithfully execute the laws. Any of those would've been better arguments.

Here. Read the judge's opinion on this point (pages 40-45) and see if you think the government did a good job of actually showing that DACA was unlawful. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv1907-23

 

[ludin]

DACA being unlawful would be a sufficiently good reason to change the law. The judge explicitly said so, and it certainly makes sense that that wouldn't be arbitrary and capricious.

But the government also can't just say something's unlawful, it actually has to show it. If the government could just be conclusory and say something is unlawful and rescind the policy, it would defeat the point of the APA. The government did not do a good job of providing its reasoning in the rescission memo where it should have. It did not cite any immigration law that DACA contravened. It incorrectly cited the DAPA decision in relation to DACA. It didn't cite anything about how the President is supposed to faithfully execute the laws. Any of those would've been better arguments.

Here. Read the judge's opinion on this point (pages 40-45) and see if you think the government did a good job of actually showing that DACA was unlawful. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv1907-23

ACtually citing DAPA is an excellent reason as DAPA was founded on the same principle as DACA and DAPA was found to be unconstitutional.
If that was the case the judge truely is being activist and ignoring past rulings on purpose.

 

[Anagram]

ACtually citing DAPA is an excellent reason as DAPA was founded on the same principle as DACA and DAPA was found to be unconstitutional.
If that was the case the judge truely is being activist and ignoring past rulings on purpose.

See that’s the thing. It wasn’t found to be unconstitutional. It was found to conflict with a provision of the INA for which there is no corresponding provision for DACA. The courts expressly did not reach the merits on the constitutional claims for DAPA.

But the memo cites the same flaws that DAPA was found unconstitutional for. It does not list them. DAPA wasn’t found unconstitutional. It might have been if the courts hadn’t found it to conflict with a statute first but it wasn’t. This is one of the reasons why the administration did such a poor job supplying reasons.

 

[Harshaw]

DACA was justified as being prosecutorial discretion, not a regulation, so the APA didn't apply. That's why Obama justified skipping comment and review and just issuing the memo. Obama didn't follow the APA to enact DACA.

For this ruling to be correct, a few things need to hold true.

1) That a judge has the power to review changes in prosecutorial discretion. This, of course, is nonsense. It's not up to any court how the executive branch exercises its prosecutorial discretion. That's why it's "discretion."

2) That a program which was NOT instituted under the APA is kosher, but changing that program which was never subject to the APA somehow violates the APA. In other words, it was fine to bypass APA requirements when enacting DACA, but it's not fine to bypass it when rescinding DACA. That, of course, is also nonsense. It's self-servingly self-contradictory.

and

3) That the government's arguments that DACA was unconstitutional, premised on the 5th Circuit's rulings striking down DAPA, and Supreme Court authority, aren't a sufficiently-"articulated" "rational basis" to rescind DACA. That, of course, is also nonsense. DACA and DAPA were enacted the same way. If one is invalid, both are.

In other words, if DACA isn't a regulation, but a change in policy issued by memo, then a memo is sufficient to change policy and rescind it. If it IS a regulation, then DACA itself is void for violating the APA.

The court wants it both ways. The court wants Trump's changes to DACA to be subject to the APA, but doesn't want DACA itself to be subject to the APA.

This ruling is absurd, and an affront to the rule of law.

 

[Anagram]

DACA was justified as being prosecutorial discretion, not a regulation, so the APA didn't apply. That's why Obama justified skipping comment and review and just issuing the memo. Obama didn't follow the APA to enact DACA.

For this ruling to be correct, a few things need to hold true.

1) That a judge has the power to review changes in prosecutorial discretion. This, of course, is nonsense. It's not up to any court how the executive branch exercises its prosecutorial discretion. That's why it's "discretion."

2) That a program which was NOT instituted under the APA is kosher, but changing that program which was never subject to the APA somehow violates the APA. In other words, it was fine to bypass APA requirements when enacting DACA, but it's not fine to bypass it when rescinding DACA. That, of course, is also nonsense. It's self-servingly self-contradictory.

and

3) That the government's arguments that DACA was unconstitutional, premised on the 5th Circuit's rulings striking down DAPA, and Supreme Court authority, aren't a sufficiently-"articulated" "rational basis" to rescind DACA. That, of course, is also nonsense. DACA and DAPA were enacted the same way. If one is invalid, both are.

In other words, if DACA isn't a regulation, but a change in policy issued by memo, then a memo is sufficient to change policy and rescind it. If it IS a regulation, then DACA itself is void for violating the APA.

The court wants it both ways. The court wants Trump's changes to DACA to be subject to the APA, but doesn't want DACA itself to be subject to the APA.

This ruling is absurd, and an affront to the rule of law.

I’ll address your other points when I can be on a laptop instead of my phone but your third point is incorrect. DAPA was found to be unlawful in the 5th Circuit because it conflicted with the INA’s established regulations on how to treat parents of United States citizens. It did not reach the merits on the other claims because they didn’t have to. There’s no corresponding provision of the INA related to DACA because the INA doesn’t touch specifically on children brought illegally to the U.S.

So relying on the 5th Circuit ruling doesn’t work because the only issue on which the merits were reached doesn’t applly. And the administration did not do anything helpful like citing conflicting immigration law or constitutional concerns Acting Secretary Duke’s memo or Sessions’ letter. They cited the legal and constitutional problems found for DAPA in the 5th circuit. The legal problem reached didn’t apply and there were no constitutional problems reached.

 

[Harshaw]

I’ll address your other points when I can be on a laptop instead of my phone but your third point is incorrect. DAPA was found to be unlawful in the 5th Circuit because it conflicted with the INA’s established regulations on how to treat parents of United States citizens. It did not reach the merits on the other claims because they didn’t have to. There’s no corresponding provision of the INA related to DACA because the INA doesn’t touch specifically on children brought illegally to the U.S.

So relying on the 5th Circuit ruling doesn’t work because the only issue on which the merits were reached doesn’t applly. And the administration did not do anything helpful like citing conflicting immigration law or constitutional concerns Acting Secretary Duke’s memo or Sessions’ letter. They cited the legal and constitutional problems found for DAPA in the 5th circuit. The legal problem reached didn’t apply and there were no constitutional problems reached.

The 5th Circuit doesn't have to actually have reached the question of constitutionality for its reasoning to be applied to the question of constitutionality. Reasoning in prior cases is expanded upon all the time. Heck, it's most of case law.

 

[Anagram]

The 5th Circuit doesn't have to actually have reached the question of constitutionality for its reasoning to be applied to the question of constitutionality. Reasoning in prior cases is expanded upon all the time. Heck, it's most of case law.

The judge in this case can only look at the rationalizations provided by the government. Since the government only provided the “constitutional” violations found by the 5th circuit that’s all this judge can use. Since there were no constitutional violations found, unfortunately that’s an iron clad barrier. The administration should have listed the supposed violations.

 

[Harshaw]

The judge in this case can only look at the rationalizations provided by the government. Since the government only provided the “constitutional” violations found by the 5th circuit that’s all this judge can use. Since there were no constitutional violations found, unfortunately that’s an iron clad barrier. The administration should have listed the supposed violations.

That's nonsense. Lower courts expand upon reasoning in prior cases all the time. And the judge being such a stickler for literalness here makes his ruling, in light of my points 1 and 2 above, all the more absurd.

 

[Anagram]

That's nonsense. Lower courts expand upon reasoning in prior cases all the time. And the judge being such a stickler for literalness here makes his ruling, in light of my points 1 and 2 above, all the more absurd.

That's not nonsense. It's an integral part of administrative action review. In other contexts courts are free to expand on reasoning.

a reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency,

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

 

[Harshaw]

That's not nonsense. It's an integral part of administrative action review. In other contexts courts are free to expand on reasoning.



SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

That isn't what I said. The court wasn't under any obligation, even under Chenery II, to read the grounds invoked by the government on such narrow terms.

Never mind that, for reasons I already pointed out, DACA doesn't properly fall under administrative action review.

 

[Anagram]

That isn't what I said. The court wasn't under any obligation, even under Chenery II, to read the grounds invoked by the government on such narrow terms.

Never mind that, for reasons I already pointed out, DACA doesn't properly fall under administrative action review.

This would be a complete reversal of the department's reasoning, not just an expansive one. Here's the phrasing from the memo.

the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA.

Since the legal defect found in DAPA doesn't apply and there were no constitutional defects recognized by any court, this court finding on some constitutional issue would go well beyond an expansive reading of the reasoning of the memo.

 

[veritas1]

An activist and legislating judiciary is our greatest danger because they are the court of last resort. If they become partisan and arbitrary, there is no real remedy except to try to elect new judges where they are subject to removal. This is why justice is pictured as blindfolded. The court is to interpret, not make law. There shouldn't be more than five minutes needed to dismiss this case. Any EO one president makes can be rescinded by another one. No reason need be presented. Any EO Trump signs can be undone by his successor. Will they be deemed "capricious"? Of course not.

 

[Anagram]

DACA was justified as being prosecutorial discretion, not a regulation, so the APA didn't apply. That's why Obama justified skipping comment and review and just issuing the memo. Obama didn't follow the APA to enact DACA.

For this ruling to be correct, a few things need to hold true.

1) That a judge has the power to review changes in prosecutorial discretion. This, of course, is nonsense. It's not up to any court how the executive branch exercises its prosecutorial discretion. That's why it's "discretion."

2) That a program which was NOT instituted under the APA is kosher, but changing that program which was never subject to the APA somehow violates the APA. In other words, it was fine to bypass APA requirements when enacting DACA, but it's not fine to bypass it when rescinding DACA. That, of course, is also nonsense. It's self-servingly self-contradictory.

and

3) That the government's arguments that DACA was unconstitutional, premised on the 5th Circuit's rulings striking down DAPA, and Supreme Court authority, aren't a sufficiently-"articulated" "rational basis" to rescind DACA. That, of course, is also nonsense. DACA and DAPA were enacted the same way. If one is invalid, both are.

In other words, if DACA isn't a regulation, but a change in policy issued by memo, then a memo is sufficient to change policy and rescind it. If it IS a regulation, then DACA itself is void for violating the APA.

The court wants it both ways. The court wants Trump's changes to DACA to be subject to the APA, but doesn't want DACA itself to be subject to the APA.

This ruling is absurd, and an affront to the rule of law.

As to your first argument. This is a closer question. It's never been squarely decided by the Supreme Court. Of course under Chaney an individual act of prosecutorial discretion is not reviewable. But the court also expressly refused to decide whether a statement of general enforcement policy would be reviewable under the APA. No case about this has made its way to the Supreme Court, but the D.C. circuit in Crowley Caribbean Transport, Inc. v. Pena found that statements of general enforcement policy could be reviewable, and later applied it to a Maritime Administration case.

It's also important that the agency did not even attempt to justify it's rescission on prosecutorial discretion.

As for your second one, DACA was subject to the APA as would any administrative action. It's reviewability would have been based on the same line of cases. It also might have required notice and comment rulemaking, but that's a whole different line that it could go down. There are a few other legal and constitutional defects that may be present in DACA. Either way, its not really relevant to this case since the reviewing judge was limited to the grounds the reasoned by the agency, of which these weren't.

 

[Anagram]

An activist and legislating judiciary is our greatest danger because they are the court of last resort. If they become partisan and arbitrary, there is no real remedy except to try to elect new judges where they are subject to removal. This is why justice is pictured as blindfolded. The court is to interpret, not make law. There shouldn't be more than five minutes needed to dismiss this case. Any EO one president makes can be rescinded by another one. No reason need be presented. Any EO Trump signs can be undone by his successor. Will they be deemed "capricious"? Of course not.

There was no EO in this case. It was all about agency action and the APA.