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

[veritas1]

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

True but the premise still holds. If Trump, or any other POTUS, has exercised powers legally within his purview, then the courts have no business trying to decide whether they like the reason for it. If they question its legality, that's one thing. Questioning its motive or rationale is something else.

 

[Anagram]

True but the premise still holds. If Trump, or any other POTUS, has exercised powers legally within his purview, then the courts have no business trying to decide whether they like the reason for it. If they question its legality, that's one thing. Questioning its motive or rationale is something else.

Congress has mandated that the courts have a say in the reasoning behind agency action through the Administrative Procedure Act. They absolutely do have business.

The statutorily mandated standard of review is arbitrary and capricious.

 

[Harshaw]

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

How would that be such a "reversal"?

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.

Why wouldn't the legal defect found in DAPA not apply?

 

[Anagram]

How would that be such a "reversal"?

Ruling on constitutional violations not found in the DAPA rulings seems like the exact opposite of ruling on the "constitutional defects found by the courts" that the government supplied in their reasoning.

Why wouldn't the legal defect found in DAPA not apply?

The legal defect was that congress had a comprehensive and specific policy already set out in the INA for dealing with parents of U.S. citizens. Allowing the DHS to create their own exceptions to that congressional policy would frustrate and contradict the established immigration law in that context. For instance before allowing parents of citizens in they must not have been in the U.S. for the previous 10 years. DAPA allowing illegal immigrants who have been in the country until now to remain in, blatantly contradicts it.

There is no similar system in the INA set out for the people who are the recipients of DACA. There may very well be other areas of the INA or other law with which DACA conflicts, but that wasn't found in the DAPA case and the administration did not lay out those reasons here. And that is the problem.

 

[veritas1]

Congress has mandated that the courts have a say in the reasoning behind agency action through the Administrative Procedure Act. They absolutely do have business.

The statutorily mandated standard of review is arbitrary and capricious.

Thanks for the info. I didn't read the story in detail. It sounds like a real messed up system.

 

[Harshaw]

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.

Sure, it did:

The government raises two threshold arguments that apply only to plaintiffs’ administrative claims:
first, that DACA’s rescission was unreviewable under the APA’s carve-out for actions “committed
21 to agency discretion by law,” 5 U.S.C. § 701(a)(2);11 a

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.

It was subject to the APA, or it wasn't. If it was, then it's void because it wasn't enacted in accordance with it. If it wasn't, then neither is rescinding it.

 

[Anagram]

Sure, it did:





It was subject to the APA, or it wasn't. If it was, then it's void because it wasn't enacted in accordance with it. If it wasn't, then neither is rescinding it.

General policy statements are subject to the APA and required not to be arbitrary and capricious. DACA was subject to the APA. What the Obama administration argued was that it wasn't subject to notice and comment as a rule not that it wasn't subject to the APA at all. I think you're conflating the two.

Now there is an argument of course that DACA should have been enacted with notice and comment rule making, but that's a different issue.

If the Obama administration was right that it wasn't subject to notice and comment rulemaking, it would have been a general policy statement. Rescinding it would still be be required to not be arbitrary and capricious as it would still be subject to the APA, just not to the part of the APA dealing with formal rule making process.

 

[Anagram]

Sure, it did:

You're right about this. I was conflating it with the fact that the government didn't argue that the rescission was due to discretion in shifting their enforcement priorities. (Another argument that would have probably worked if the government actually used it). But the analysis I had still holds firm for why they lost on that point. Especially, since Crowley as a D.C. Circuit case was binding on Judge Bates. He could not have found otherwise.

 

[Harshaw]

General policy statements are subject to the APA and required not to be arbitrary and capricious. DACA was subject to the APA. What the Obama administration argued was that it wasn't subject to notice and comment as a rule not that it wasn't subject to the APA at all. I think you're conflating the two.

Now there is an argument of course that DACA should have been enacted with notice and comment rule making, but that's a different issue.

If the Obama administration was right that it wasn't subject to notice and comment rulemaking, it would have been a general policy statement. Rescinding it would still be be required to not be arbitrary and capricious as it would still be subject to the APA, just not to the part of the APA dealing with formal rule making process.

It was specifically an issue in this case. There's a whole passage in the order where the court discusses the government's argument specifically along these lines. The court rejected it, in large part, because it found that the government had "interpreted" the INA by concluding it didn't provide the authority to enact DACA.

 

[Harshaw]

You're right about this. I was conflating it with the fact that the government didn't argue that the rescission was due to discretion in shifting their enforcement priorities. (Another argument that would have probably worked if the government actually used it). But the analysis I had still holds firm for why they lost on that point. Especially, since Crowley as a D.C. Circuit case was binding on Judge Bates. He could not have found otherwise.

His argumentation concerning Crowley was quite unconvincing, couched, as it was, on the idea that the government had "interpreted" the INA by saying there was no authority for DACA.

 

[Anagram]

His argumentation concerning Crowley was quite unconvincing, couched, as it was, on the idea that the government had "interpreted" the INA by saying there was no authority for DACA.

How is stating that there is no statutory authority for an action you are rescinding not interpreting a statute? I found that section entirely persuasive assuming Crowley was correctly decided. (Something I’m not certain of, but irrelevant since as it was D.C. Circuit it’s binding on Judge Bates)

 

[Harshaw]

Ruling on constitutional violations not found in the DAPA rulings seems like the exact opposite of ruling on the "constitutional defects found by the courts" that the government supplied in their reasoning.

They didn't just hang it on "constitutional" defects, nor only on Texas v. United States. But even if so, taking the reasoning in the case to the next step is hardly the "exact opposite."

The legal defect was that congress had a comprehensive and specific policy already set out in the INA for dealing with parents of U.S. citizens. Allowing the DHS to create their own exceptions to that congressional policy would frustrate and contradict the established immigration law in that context. For instance before allowing parents of citizens in they must not have been in the U.S. for the previous 10 years. DAPA allowing illegal immigrants who have been in the country until now to remain in, blatantly contradicts it.

There is no similar system in the INA set out for the people who are the recipients of DACA. There may very well be other areas of the INA or other law with which DACA conflicts, but that wasn't found in the DAPA case and the administration did not lay out those reasons here. And that is the problem.

The government cited legal defects other than that. The court focused like a laser on that single defect because it chose to, not because it had to. And it also cited the previous Administration's OLC justifications for the legality of DACA, so it was perfectly willing to go off-book in reaching its conclusion.

 

[Harshaw]

How is stating that there is no statutory authority for an action you are rescinding not interpreting a statute? I found that section entirely persuasive assuming Crowley was correctly decided. (Something I’m not certain of, but irrelevant since as it was D.C. Circuit it’s binding on Judge Bates)

You don't need to "interpret" a statute outlawing burglary to know it doesn't cover murder. You just need to read it.

You don't need to "interpret" a check for $10 to know it doesn't authorize you to draw $500. You just need to read it.

 

[Anagram]

They didn't just hang it on "constitutional" defects, nor only on Texas v. United States. But even if so, taking the reasoning in the case to the next step is hardly the "exact opposite."

I didn't say that was their only justification. But "legal and constitutional defects found in DAPA by the courts" was their entire justification relating to DAPA. And I was only referring to your argument that this court could go beyond the defects actually found by the court in relation to that justification.

The government cited legal defects other than that. The court focused like a laser on that single defect because it chose to, not because it had to. And it also cited the previous Administration's OLC justifications for the legality of DACA, so it was perfectly willing to go off-book in reaching its conclusion.

I don't see any legal or constitutional defects in the Duke memo unaddressed by this court. The previous administrations OLC justifications for the legality of DACA were only referenced in opposition to the one sentence with no explanation argument in the memo that DACA is unlawful because of the president's requirement to "take care that the Laws be faithfully executed." The government didn't offer any further argument on that point than that one sentence. And I have to agree that the one sentence there isn't a sufficient argument.

 

[Anagram]

You don't need to "interpret" a statute outlawing burglary to know it doesn't cover murder. You just need to read it.

You don't need to "interpret" a check for $10 to know it doesn't authorize you to draw $500. You just need to read it.

This is not that situation. At the very least the DHS interpreted the statutes to allow for this kind of authority in 2012. They are now absolutely interpreting them to not allow a previously established policy.

Personally, I think they probably have the better argument, (although they should have actually made the argument in Elaine Duke's memo) that DACA conflicts with existing immigration law. But they are absolutely interpreting those laws in that they have now come to the conclusion that there is no statutory authority.

 

[Harshaw]

I didn't say that was their only justification. But "legal and constitutional defects found in DAPA by the courts" was their entire justification relating to DAPA. And I was only referring to your argument that this court could go beyond the defects actually found by the court in relation to that justification.



I don't see any legal or constitutional defects in the Duke memo unaddressed by this court. The previous administrations OLC justifications for the legality of DACA were only referenced in opposition to the one sentence with no explanation argument in the memo that DACA is unlawful because of the president's requirement to "take care that the Laws be faithfully executed." The government didn't offer any further argument on that point than that one sentence. And I have to agree that the one sentence there isn't a sufficient argument.

I never said they weren't addressed. They weren't addressed convincingly.

 

[Harshaw]

This is not that situation. At the very least the DHS interpreted the statutes to allow for this kind of authority in 2012.

Sure, they did in 2012. But that's not the issue here, now.

They are now absolutely interpreting them to not allow a previously established policy.

Personally, I think they probably have the better argument, (although they should have actually made the argument in Elaine Duke's memo) that DACA conflicts with existing immigration law. But they are absolutely interpreting those laws in that they have now come to the conclusion that there is no statutory authority.

Well, it appears we just have a genuine disagreement within the bounds of reason.

 

[Anagram]

Sure, they did in 2012. But that's not the issue here, now.



Well, it appears we just have a genuine disagreement within the bounds of reason.

That’s fair. I need to stop anyway. I’ve been distracting myself from studying for my actual law school exams the last couple days by spending an inordinate amount of time reading this case and the DAPA cases and the DHS memos and my old Admin law textbook. Interesting, but very unhelpful for what I should be doing.

Was fun arguing with someone who actually read the case though and you clearly know your stuff even if I disagree with your conclusion.

 

[Harshaw]

That’s fair. I need to stop anyway. I’ve been distracting myself from studying for my actual law school exams the last couple days by spending an inordinate amount of time reading this case and the DAPA cases and the DHS memos and my old Admin law textbook. Interesting, but very unhelpful for what I should be doing.

Was fun arguing with someone who actually read the case though and you clearly know your stuff even if I disagree with your conclusion.

I agree -- it was an enjoyable conversation. Good luck with your studies! What year are you?

 

[Anagram]

I agree -- it was an enjoyable conversation. Good luck with your studies! What year are you?

Thanks. I’m in my last year.

 

[Harshaw]

Thanks. I’m in my last year.

My 3L year was one of my most-fun years ever. Good luck with the bar exam.

 

[ultmd]

Actually that article completes suports my position.

The link you posted was a single-year review of one (of the 12) federal circuit courts...............FROM 1996. It provided absolutely no context. No comparison was made between the 9th Circuit and the other 11 U.S. Circuit courts....not even for the year 1996. But, of course, you didn't need context, because you're only interested in re-affirming your extenting biases. Concepts and principles like TRUTH and CONTEXT are nothing more than inconvenient, optional novelties for ideologues.

So, let's be clear. Your citation of that article was a classic example of the kind of affirmation (i.e. confirmation ) bias upon which ideologues rely. You cannot get more "cherry-picked" than using a 22 year old study of one of 12 circuit courts as "proof" that the 9th Circuit is the most "activist" Circuit court in the US. And, as I stated in my previous response, the FACTS show that your argument is a FALSE one, as Data from the last 10-15 years CLEARLY proves that the most overturned Circuit courts in the country are BOTH dominated by conservative/republican judges.

In life and in politics there are THE FACTS (which I've provided you), and then there are "factoids" (which you provided by posting a single out-of-context study from 22 years ago). And the simple reality is that THE Facts ALWAYS trump "factoids" (pun intended).

When you have a bunch of judges...and I mean a LARGE bunch of judges that make known unconstitutional findings, you have judicial activism.

Again, you're either not reading, or you are blinding by ideology/emotion. I just told you that:

(1) the USSC overturned 70%+ of all appeals from the Circuit courts.
(2) the 9th Circuit isn't even the most overturned circuit in the country
(3) the most overturned circuits in the country (i.e. the 11th and the 6th) are BOTH overwhelming republican/conservative districts.

The simple FACT here is that there is MUCH more "judicial activism" in our federal courts from CONSERVATIVE districts, than from the 9th Circuit.

There is a reason why the 9th has the reputation that it has.

Yes, there is. And the FACTS (which I've laid out here) clearly show that. Unfortunately for you, that "reason" is related to the power and influence of your trusted right wing/fake news media sources. You are living proof of that. After all, the very fact that you THOUGHT (so strongly) that the 9th Circuit is the most "overturned" court in the country............PROVES this point.

Anyone that has a pulse and a measurable IQ understands that. The question then is why would anyone be stupid enough to argue against it.

So this is a question for YOU to answer. Why do so many right wingers and Fake News lovers like you believe that the 9th Circuit is the most overturned in the country? I won't question your IQ level....nor will I call you STUPID....... but I will close by pointing out another FACT, i.e. that there are some studies that do PROVE that people who trust conservative news sources are the LEAST INFORMED (about current events and political issues) of all segments of the voting public.....even LESS informed than people who pay absolutely no attention to the daily news.

Conversations like this just help illustrate the extent to which the plague of Fake News is killing the conservative movement and the once-Grand Old Party in America.

 

[ultmd]

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

My remarks had nothing to do with the APA, or anything Mr. Person posted.

Not sure how you came to such an arbitrary conclusion.

I was noting that conservatives call EVERY judicial ruling that conflicts with their ideology, "judicial activism". And like most of the conservatives in this thread, most of the time these conservatives base their aggrievements on the stuff they see, read and hear from their trusted conservative/fake news sources. As in this case, they don't even bother to read the actual ruling for themselves. They are so convinced that their side can never be wrong that their knee-jerk/reactionary default response is just "judicial activism".

Conservatives today are so deluded that they seem to believe that "conservative" EQUALS "constitutional". So whenever a ruling comes down that does not support the "conservative" argument............we can ALWAYS count on the same "judicial activism" babble from them.

But this case is a very good example of how ridiculous that is.