Federal Judge Rules Against Trump’s Effort To Halt DACA Program

A Federal Judge has put a hold on the impending end of the DACA program.

Trump DACA

Late yesterday, a Federal District Court Judge in California issued a ruling putting the Trump Administration’s efforts to end the Deferred Action For Childhood Arrivals (DACA) program on hold:

WASHINGTON — In the middle of an intense political fight about the program that shields from deportation young immigrants who were brought illegally to the United States as children, a federal judge in California issued a nationwide injunction late Tuesday ordering the Trump administration to start the program back up again.

Saying the decision to kill it was improper, Judge William Alsup of Federal District Court in San Francisco wrote that the administration must “maintain the DACA program on a nationwide basis” as the legal challenge to the president’s decision goes forward.

President Barack Obama created the Deferred Action for Childhood Arrivals program, known as DACA, in 2012 to also give young immigrants the ability to work legally in the United States. President Trump moved to end the program in September, saying that Mr. Obama’s actions were unconstitutional and an overreach of executive power.

That decision has set off a fierce debate in Washington as Democrats and Republicans spar about how to provide relief for about 800,000 immigrants who could face deportation when the program ends on March 5. Mr. Trump met with lawmakers on Tuesday afternoon in a remarkable, hourlong televised meeting to begin negotiations.

But critics of the president’s decision to end the policy, including several states and organizations, had already sued the administration, saying that shutting down the program was arbitrary and done without following the proper legal procedures.

One of the lead plaintiffs in the case, Janet Napolitano, is currently the president of the sprawling University of California system of colleges but served as the secretary of homeland security for Mr. Obama in 2012 and was an architect of the DACA program.

In his ruling, Judge Alsup questioned the administration’s contention that the DACA program had not been put into place legally. He asserted that the secretary of the Department of Homeland Security has long had the authority to grant the kind of temporary protections that formed the basis of the program.

Judge Alsup also cited several of Mr. Trump’s Twitter posts that expressed support for the program. He noted that in September, the president wrote: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!” Such tweets, the judge said, bolstered the idea that keeping the program going was in the public’s interest.

The judge wrote that previous beneficiaries of DACA, known as Dreamers, must be allowed to renew their status in the program, though the government will not be required to accept new applications from immigrants who had not previously submitted one. The judge also said the administration could continue to prevent DACA recipients from returning to the United States if they leave the country.

It is unclear what the legal effect could be from the judge’s ruling, but the Trump administration may be headed for more intense legal wrangling like the kind that happened after the president’s travel bans.

A spokesman for the Justice Department, Devin O’Malley, said that the ruling did not change the department’s stance.

“DACA was implemented unilaterally after Congress declined to extend these benefits to this same group of illegal aliens,” he said. “As such, it was an unlawful circumvention of Congress, and was susceptible to the same legal challenges that effectively ended DACA. The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner. Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens.”

Dara Lind comments on the ruling at Vox:

Alsup’s ruling isn’t a decision about whether the Trump administration acted illegally or unconstitutionally to end DACA in September 2017. It’s a preliminary injunction — an order to temporarily stop a government policy, while the courts hash out the question of whether the policy is legal and constitutional. That makes it, by its nature, temporary.

Preliminary injunctions are issued when the judge believes it’s likely that the policy in question will ultimately be struck down in court — and when the cost of allowing the policy to go into effect is large and irreversible enough that it’s best not to risk it.

In this case, of course, the policy already has gone into effect (despite the tendency of the Trump administration and others to say that DACA “expires” on March 5).

In September, the Department of Homeland Security stopped allowing people to apply for an initial two-year grant of protection from deportation and work permit under DACA. It prevented people whose current work permits expired after March 5, 2018 for applying for renewal.

And it set a deadline of October 5 for anyone whose work permits were set to expire in the next six months to apply for one last renewal — a deadline that roughly 22,000 DACA recipients missed, many, it turns out, because of Postal Service delays and/or narrow deadline interpretations by US Citizenship and Immigration Services.

Judge Alsup’s order doesn’t fully reanimate the DACA program. It does not allow people who had not previously applied for DACA — even if they became eligible (say, by turning 16) after the Trump administration stopped accepting new applications on September 5 — to apply. And it doesn’t allow those who currently have DACA to apply for “advance parole,” or the ability to leave the United States and come back.

The order says that the Trump administration has to make it possible for people who already were approved for DACA to apply for two-year renewals of their work permits and deportation protections. That applies to the estimated 11,000 people whose work permits have already expired since September. It also applies to immigrants whose work permits are set to expire in the coming weeks or months, but didn’t get a chance to reapply under the administration’s rules.

This ruling comes in a lawsuit filed by the University of California system and a group of DACA beneficiaries shortly after the Trump Administration announced that the DACA program would be ended in six months time. That decision was announced in September of last year, meaning that the program would end in March 2018 and that the men and women who have benefited from the DACA program. That lawsuit joined several others that had been filed in the wake of the Administration’s announcement, including a DACA recipient in New York City and on behalf of the State of New York and roughly a dozen other Democratic-controlled states. Although they differ in some respects based on the individual circumstances of the Plaintiffs, each of the lawsuits raise essentially the same claims against the Administration’s action.

For example, each lawsuit alleges that the manner in which the repeal was announced violated the procedures required by the Administrative Procedure Act, a Federal law that sets forth how the Executive Branch and various regulatory agencies must proceed when enacting or repealing most, though not necessarily all, regulations that become part of Federal Law as authorized by Congress. This was the ground upon which Texas and a group of other states were successful in getting a stay imposed by a Federal District Court Judge and sustained by the Fifth Circuit Court of Appeals and the Supreme Court when they sued the Obama Administration over the much broader Deferred Action for Parents of Americans (DAPA) program.

The lawsuits also allege a handful of Constitutional arguments against the repeal of DACA. First, the lawsuits claim that the decision violates the Due Process Clause in the manner that it seeks to deprive the Plaintiffs of the benefits provided under the DACA programs. Second, the lawsuits argue that the decision to repeal the program violated the Equal Protection clause in that the decision was motivated at least in part by the intention to discriminate against Mexican-Americans and members of other minority groups. In support of these allegations, the Complaint borrows heavily from the lawsuits that had been filed against Trump’s Executive Order seeking to ban immigration and travel to people from a group of predominantly Muslim nations, an order that was struck down by several Federal Courts and ultimately severely limited by a divided Supreme Court earlier this year. In those cases, of course, the Plaintiffs used many of President Trump’s own comments as a candidate for President and dating back to before he was a candidate to establish what they allege is a bias against Mexican-Americans and other predominantly Latino immigrant groups.

Finally, the lawsuits raise claims under a legal principle known as “equitable estoppel.” Simply put, this doctrine applies in cases where parties have acted in reliance upon the actions or statements of another party to change their position in some respect and that making a change in the manner in which the parties have previously acted would be unfairly detrimental to the parties who relied on the aforementioned actions of the parties making the promise. In this case, DACA beneficiaries have argued that they relied on the changes in Federal policy regarding the treatment of people who were brought to the country illegally when they were children in the fact that they came forward and provided the Federal Government and law enforcement with detailed information and, in the words of Judge Alsop, significantly changed their position in reliance upon the Government’s representation that this information would not be used against them. Due to this, the individual Plaintiffs argue that the government should be prevented from ending the DACA program and from using any of the information provided by beneficiaries against them in any future immigration proceedings.

In his 49-page opinion, Judge Alsup, who was appointed by President Clinton in 1999 and has presided over several notable cases in his tenure such as a ruling issued last year finding the Federal Government’s no-fly list violated due process to the extent that it does not protect the due process rights of people erroneously placed on the list, ruled that the Plaintiffs were likely to succeed on each of these arguments and that therefore they were entitled to an injunction against ending the program pending a full trial on the merits. Prior to that time, of course, the Trump Administration has the option of appealing the Judge’s decision on the injunction to the Ninth Circuit Court of Appeals and, beyond that, to the Supreme Court, but that is a process likely to take several months at least. In the meantime, the injunction will remain in place, which means that the DACA program will remain in place for the time being, and will almost certainly remain in place well beyond the currently pending March 2018 expiration date. As Dara Lind notes in the Vox piece linked above,

This announcement came, as noted, on the same day that Trump held a bipartisan meeting with members of the House and Senate in which the fate of DACA program was a large part of the discussion. At issue was the question of Congressional action to codify the DACA program in some way so as to protect the beneficiaries, and perhaps to expand its coverage to include others brought to the United States as children who were not directly impacted by President Obama’s action. While members of the House and Senate from both sides of the political aisle have said that they wish to act to protect the DACA, no such action has been taken to date. The primary area of disagreement appears to be Republican insistence that any bill addressing DACA include funding for the President’s so-called “border wall,” something that Democrats have objected to on a united basis. This decision throws an unexpected monkey wrench into those negotiations to the extent that it arguably relieves Republicans of the pressure of the impending March deadline to extend the program. What impact that will have on Congressional action remains to be seen.

Here is Judge Alsop’s opinion:

Regents of the University of California Et Al v. Dept of Homeland Security Et Al Opinion by Doug Mataconis on Scribd

FILED UNDER: Borders and Immigration, Donald Trump, Law and the Courts, Politicians, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. HarvardLaw92 says:

    Slightly OT: the Fourth Circuit killed NC’s congressional map yesterday, in a biting 191 page opinion which goes so far as to order the NC General Assembly to deliver a new map to the court by January 24th, and takes the additional step of specifying that the court will impose its own maps if it finds the replacement submission unsatisfactory.

    The hits just keep on coming.

    Likely result: NC appeals to join the cases which are already before SCOTUS. We could conceivably find ourselves with a Supreme Court ruling which guts partisan gerrymanders.




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  2. teve tory says:

    I love how the one legislator is quoted as saying something like “We need to do this gerrymandering so more Republicans get elected than Democrats.”




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  3. teve tory says:

    republicans are 30-40% of NC voters, but they rigged it to get 10 out of 13 congressional seats.




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  4. Paul L. says:

    This is RBG level legal reasoning.
    Up there with the 14th amendment does not apply to white people and the Electoral College Is Unconstitutional.

    Trump Law: Donald trump can not reverse any executive order done by Obama.




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  5. Mikey says:

    For anyone still thinking Trump’s tweets aren’t legally relevant, official statements, this should disabuse you of that notion:

    Judge Alsup also cited several of Mr. Trump’s Twitter posts that expressed support for the program. He noted that in September, the president wrote: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!” Such tweets, the judge said, bolstered the idea that keeping the program going was in the public’s interest.




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  6. Hal_10000 says:

    It seems odd that Trump can not rescind by executive order something that was implemented by executive order. I understand the legal arguments go beyond that — the equitable estoppel argument seems particularly relevant. But that would seem to argue that policy, once implemented, can not be undone. This might have consequences if/when Trump’s successor wants to undo his actions.




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  7. michael reynolds says:

    The policy is cruel and motivated by racism and partisan politics. The judge seems to be hoping to at least stall this atrocity. If he were a German in 1939 he’d be a Nobel Prize contender for putting simple human decency ahead of unjust law.

    That said, I don’t see this argument holding up.

    In the meantime it complicates DACA/shutdown/wall negotiations almost as much as the Dotard rambling away Republican talking points while GOP leaders try desperately to shut him up.




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  8. jpe789 says:

    It seems odd that Trump can not rescind by executive order something that was implemented by executive order.

    You can’t let reason get in the way of #resisting.

    the equitable estoppel argument seems particularly relevant.

    You generally can’t argue detrimental reliance when the other party expressly reserves the right to change their mind and says you shouldn’t rely on it, which is exactly what the initial DACA program stated.




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  9. James Pearce says:

    The primary area of disagreement appears to be Republican insistence that any bill addressing DACA include funding for the President’s so-called “border wall,” something that Democrats have objected to on a united basis.

    We’re going to be deporting these people soon, aren’t we?




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  10. MBunge says:

    @michael reynolds: The policy is cruel and motivated by racism and partisan politics.

    No, it is the result of American elites wishing to have a certain kind of immigration policy without ever actually enacting that policy through the democratic process.

    Mike




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  11. CSK says:

    It’s hilarious that the judge is using Trump’s own Twitterings in praise of DACA to dismiss Trump’s current fleeting objections to DACA.

    Are you listening, James Pearce? This is precisely why Trump’s ravings on Twitter are relevant.




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  12. Tyrell says:

    Maybe that judge will be glad to let them stay with him.




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  13. James Pearce says:

    @CSK:

    Are you listening, James Pearce? This is precisely why Trump’s ravings on Twitter are relevant.

    Trump’s ravings on Twitter are never “relevant.” They’re not entertaining. They’re not newsworthy. They’re not revelations into his thinking.

    They’re propaganda. They are tools of abuse.

    If you find one tweet that says one thing, you’ll find another that says the complete opposite, because “there’s always a tweet” and the president is liar who will say anything, true or not, his view or not, consistent with what he’s said before or not.

    Now I haven’t read through the 49 pages of the decision, and you probably haven’t either, but I would be willing to bet that his Tweets’ importance are, as usual, overstated, and the actual decision is rooted in the relevant laws.

    Here is Trump’s latest tweet, verbatim:

    The fact that Sneaky Dianne Feinstein, who has on numerous occasions stated that collusion between Trump/Russia has not been found, would release testimony in such an underhanded and possibly illegal way, totally without authorization, is a disgrace. Must have tough Primary!

    You guys can read that shit for the next 3-8 years if you want, thinking you have to because he’s the president.

    I’m going to ignore it as best as I can because it doesn’t matter what the president writes on Twitter. He’s the president, bound not by Twitter’s terms of service, but by the Constitution of the United States. And this case shows that rather than the relevance of Trump Tweets.




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  14. wr says:

    @James Pearce: “I’m going to ignore it as best as I can because it doesn’t matter what the president writes on Twitter.”

    If I thought for a second that was true, I’d bake you a cake. But you’re not going to ignore it. You’re going to post multiple times every day complaining about the fact that other people pay attention to Trump’s tweets and preening over your superiority in not caring.




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  15. CSK says:

    @James Pearce:

    James, when a judge issues a decision citing Trump’s demented Twitter ramblings as part of the basis for his desision, that very fact underscores their relevance and significance. I get that you don’t like Twitter. I get that you don’t use Twitter. But to imagine that other people don’t pay attention to Twitter just because you don’t is the severest form of solipsism.

    Trump has repeatedly said that Twitter is how he communicates with the American people. What do you not get about that? And don’t dismiss the Tweets as the ramblings of a senile old buffoon. They are certainly that, but they are also the policy statements of the president of the United States. They’re his version of a press conference. They are on-the-record statements.




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  16. James Pearce says:

    @wr:

    If I thought for a second that was true, I’d bake you a cake.

    Happy Birthday to the ground.

    (I ain’t gonna be part of your system, maaaaaaan!)

    @CSK:

    They’re his version of a press conference.

    I saw an actual press conference with Trump earlier today. He had to stand there at the podium and answer questions from the press like a real president.

    Then it was back to the Homeric epithets on his outrage machine.




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  17. Mister Bluster says:

    @Tyrell:..Maybe that judge will be glad to let them stay with him.

    The people that Kim Jong Trump wants to exile already have a place to live.
    You could at least attempt to make remarks here that address the issue.

    David Shirk, a fellow at the Woodrow Wilson International Center for Scholars, said the idea that immigrants “take” jobs ignores the jobs they help create.
    “Immigrants tend to buy goods and services that, in effect, create jobs, which can be good for U.S. citizens: They rent our houses, buy our gas, eat at our restaurants, etc. Since most of these goods and services are taxed, they also help pay for the government jobs that help build roads, educate our kids and inspect our food,” he said. “Economic growth allows for more jobs, more jobs allow for more growth.”
    Fact-checking Attorney General Jeff Sessions on the DACA immigration program

    An estimated 123,000 people bought homes after their DACA applications were approved.
    They pay an estimated $380 million a year in property taxes to their communities.
    California and Texas Dreamer homeowners pay enough in property taxes to fund the salaries of more than 1,500 elementary school teachers in each state for a year.
    Zillow Inc.




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  18. CSK says:

    @James Pearce:

    And you have no problem with the fact that his Tweets may directly conflict with whatever he might have said in a press conference an hour earlier?




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  19. Mister Bluster says:

    He had to stand there at the podium and answer questions from the press like a real president.

    It’s going to take a lot more than this for him to come close to being presidential.

    “I know more about ISIS than the generals do. Believe me.”

    “You could see there was blood coming out of her eyes, blood coming out of her wherever.”

    “Russia, if you’re listening, I hope you’re able to find the 30,000 [Hillary Clinton] emails that are missing. I think you will probably be rewarded mightily by our press.”
    (How this is not outright treasonous is beyond me.)

    “I always wanted to get the Purple Heart. This was much easier.”
    (The Draft Dodging President of the United States said this.)

    “…Grab them by the pussy. You can do anything.”
    (he is a pig)

    “You know, it really doesn’t matter what the media write as long as you’ve got a young, and beautiful, piece of ass.”
    (he is a pig)

    “Lyin’ Ted Cruz just used a picture of Melania from a shoot in his ad. Be careful, Lyin’ Ted, or I will spill the beans on your wife!”
    (they are both pigs)

    “I’ve said if Ivanka weren’t my daughter, perhaps I’d be dating her.”
    (he is a sexual pervert)

    “Ariana Huffington is unattractive, both inside and out. I fully understand why her former husband left her for a man – he made a good decision.”
    (he is a dick)

    “An ‘extremely credible source’ has called my office and told me that Barack Obama’s birth certificate is a fraud”
    (he is a moron for believing this if there was a call and he is a liar for repeating it)




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  20. Mikey says:

    @James Pearce: You’re just sticking your fingers in your ears and going “lalalalala” because you can’t admit you’re wrong.




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  21. James Pearce says:

    @CSK:

    And you have no problem with the fact that his Tweets may directly conflict with whatever he might have said in a press conference an hour earlier?

    Of course I have a problem with it. I thought I’ve been pretty clear that I don’t like how Trump uses Twitter. I’d prefer to see him squirm under questioning from a hostile press.

    @Mister Bluster:

    It’s going to take a lot more than this for him to come close to being presidential.

    Trump will never be what we think of as “presidential.” But the fact remains: he’s POTUS and joint press conferences with other world leaders can’t be done on Twitter.

    @Mikey:

    because you can’t admit you’re wrong

    Wrong about what? The quality and nature of Trump’s tweets? I am not wrong about that.

    Wrong about how much importance Trump’s tweets should play in my life and the lives of my fellow Americans? No, I just disagree.




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  22. Mikey says:

    @James Pearce:

    Wrong about what? The quality and nature of Trump’s tweets? I am not wrong about that.

    Not sure what you mean by “quality and nature.” If you mean they’re often inane, yeah, you’re not wrong. But you seem to insist they’re also irrelevant, when they are quite clearly not, as evidenced by multiple court decisions that have cited them as a factor in those decisions.

    Wrong about how much importance Trump’s tweets should play in my life and the lives of my fellow Americans? No, I just disagree.

    I truly wish I could agree with you on that particular aspect.




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  23. James Pearce says:

    @Mikey:

    But you seem to insist they’re also irrelevant, when they are quite clearly not, as evidenced by multiple court decisions that have cited them as a factor in those decisions.

    Zero court cases have been decided on the basis of Trump tweets. His tweets have been mentioned in court cases, but so what?

    “There’s always a tweet.” Surely, you’ve heard that phrase. If Trump tweeted out that he liked chocolate cake it would take about five minutes to find the tweet that says that all cakes should be red velvet.

    Trump’s twitter feed is just noise, man.




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  24. Mikey says:

    @James Pearce: The White House says Trump’s tweets are official statements. The DoJ says Trump’s tweets are official statements. Multiple federal judges have understood Trump’s tweets as official statements, incorporating them into decisions as support for those decisions.

    I wish Trump’s twitter feed were just noise, but it’s not, and all of the above prove it’s not.




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  25. michael reynolds says:

    @James Pearce:

    The case for Trump’s Twitter being a) important and b) official has been made. Your continuing objection is ridiculous. Are you so rigid you’ll just go on denying reality rather than admit error? Because you’re straying into @MBunge territory now. You’re very close to being entirely ignored or made an object of ridicule.




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  26. James Pearce says:

    @Mikey:

    I wish Trump’s twitter feed were just noise, but it’s not, and all of the above prove it’s not.

    Why is it so important to “prove” me wrong on what is, basically, an opinion?




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  27. CSK says:

    @James Pearce:

    “Trump Bashes FISA Bill, Then Supports It, In Baffling Twitter Tirade”

    The Week, January 11, 2018

    But because James Pearce hates Twitter, Trump’s Tweetings have absolutely no effect on policy debate, governance, whatever, right?




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  28. CSK says:

    @James Pearce:

    Because you’re stating your opinion as if it were fact.




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  29. michael reynolds says:

    @James Pearce:
    It’s not important to us to prove you wrong; it’s important to you, to your credibility, to your standing. If you tell us your ‘opinion’ is that the Earth is flat, it’s not important for anyone to prove the earth is spherical, we know it is. If you insist it’s not then you’re hors de combat, dismissed as a nut.

    You’re smarter than that. Or would be if your goal was being correct going forward rather than defending a past error in judgment. Mistakes aren’t fatal, we all make mistakes, we all guess wrong. Insisting you’re right all along when you manifestly are not, that’s what destroyes your credibility.




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  30. James Pearce says:

    @michael reynolds:

    The case for Trump’s Twitter being a) important and b) official has been made.

    And re-made….

    At this point, it seems to be less about whether Trump’s twitter is important and more about whether I’m wrong.

    You’re very close to being entirely ignored or made an object of ridicule.

    Not much of a threat, Michael. I can give it as well as take it, so not worried at all about ridicule.

    And to ignore me, you’d have to resist the urge to pile-on. Who goes first?




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  31. James Pearce says:

    The perils of pretending that Trump’s tweets are “important” and “relevant.”

    Link




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  32. KM says:

    @Hal_10000 :

    But that would seem to argue that policy, once implemented, can not be undone. This might have consequences if/when Trump’s successor wants to undo his actions.

    Fiat by executive order is supposed to be overruled or countermanded by legislation, not another executive order. It’s one of the reasons Trump’s use of them is problematic – a President can go a personal crusade to “undo” the previous President, only to have the pendulum swing right back when *their* successor changes back to the way it was. That way lies chaos and constantly changing standards – this is not a game of Tag. I can sympathize with the notion that it’s not a legal reset button as much as I might personally anticipate it being used to fix Trump’s mistakes.

    Perhaps a better way to do it is to make EO’s only viable during the tenure of whomever issued them – the incoming President must then renew /approve them and any EO’s surviving more then 2 separate Presidents must go up to Congress to be made into proper law. A yearly “President’s EO Bill 20XX” would then up for a vote and any that fail to pass can be reissued as a separate EO to start the process anew.




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  33. Matt says:

    @James Pearce: Meanwhile Pakistan and other governments don’t agree with you and are taking the tweets seriously. To you that’s not a problem because we’re not supposed to take the tweets seriously or something. Never mind that the tweets are doing very real damage to our relationships with our allies and those we wish to ally with….

    Aside from that we get your point…. I wish we could ignore the stupidity of Trump’s tweets but reality doesn’t allow that.




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  34. An Interested Party says:

    Oh look, here’s a Trump statement not made on Twitter…we really do have an embarrassing pathetic piece of trash sitting in the White House…




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  35. James Pearce says:

    @Matt:

    Meanwhile Pakistan and other governments don’t agree with you and are taking the tweets seriously. To you that’s not a problem because we’re not supposed to take the tweets seriously or something.

    It’s a problem because the tweets are garbage.

    I wish we could ignore the stupidity of Trump’s tweets but reality doesn’t allow that.

    I’m sorry, man, but I’m the captain of my soul and, having judged Trump’s tweets to be useless garbage, I find no point, value, or edge in paying attention to them. YMMV




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  36. Matt says:

    @James Pearce: YEt day after day you spend all kinds of energy telling us how you’re not paying attention to them and no one else should either. You’re still paying attention to them. You’re just deluding yourself.




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