Outside the Beltway

Federal Judge Deals Another Blow To Trump’s DACA Order

Another Federal Judge has dealt a legal blow to President Trump's effort to shut down the DACA program.

Doug Mataconis · Tuesday, August 7, 2018 · 2 comments

Late last week, a Federal Judge in Washington, D.C. has issued yet another ruling against the Administration in its nearly year-long effort to end President Obama’s Deferred Action for Childhood Arrivals (DACA) program:

A federal judge on Friday upheld his previous order to revive an Obama-era program that shields some 700,000 young immigrants from deportation, saying that the Trump administration had failed to justify eliminating it.

Judge John D. Bates of the Federal District Court for the District of Columbia gave the government 20 days to appeal his decision. But his ruling could conflict with another decision on the program that a federal judge in Texas is expected to issue as early as next week.

The Trump administration announced late last year that it would phase out the program known as Deferred Action for Childhood Arrivals, or DACA, which protects undocumented young adults from deportation and grants them two-year renewable work permits. The administration argued that President Barack Obama had overstepped his authority and circumvented Congress when he created the program in 2012.

The decision to end the program has faced numerous legal challenges. Currently, the government must continue accepting applications to renew DACA status, if not new applications from those who meet the criteria to qualify. DACA recipients — often called “Dreamers” — typically were brought to the United States illegally as children through no choice of their own.

Judge Bates ruled in late April that the administration must restore the DACA program and accept new applications. He had stayed his decision for 90 days to give the Department of Homeland Security, which runs the program, the opportunity to lay out its reasons for ending it.

Kirstjen Nielsen, the homeland security secretary, responded last month, arguing that DACA would likely be found unconstitutional in the Texas case and therefore must end. She relied heavily on the memorandum that her predecessor, Elaine C. Duke, had issued to rescind the program and said that the department had the discretion to end the program, just as the department under Mr. Obama had exercised discretion to create it.

Judge Bates, who was appointed by President George W. Bush, did not agree. He called the shutdown of the program “arbitrary and capricious” and said that Secretary Nielsen’s response “fails to elaborate meaningfully on the agency’s primary rationale for its decision.”

Two federal judges, in Brooklyn and in San Francisco, issued injunctions this year ordering the government to keep the program. But neither of those rulings required that the government accept new applications, as the ruling by Judge Bates does. The earlier decisions are pending before appeals courts.

Meanwhile, the State of Texas and several other plaintiffs have sued the government to rescind the program, contending that it is illegal.

The District of Columbia lawsuit was brought by the N.A.A.C.P., Microsoft and Princeton University. The DACA program has broad bipartisan support in the business and academic worlds.

Including Judge Bates’s original order that was handed down in April, this decision marks the fifth time that a Federal District Court Judge has handed a defeat to the Trump Administration on the legality of its DACA order and the fourth time that a Judge has issued an order that effectively keeps the DACA program in place indefinitely. In January, a District Court Judge in San Francisco ruled that the Administration’s efforts to repeal the program violated the law and issued an injunction barring the program from going into effect. That ruling was followed roughly a month later by a ruling from a second Federal Judge in Maryland who issued a similar ruling on much the same grounds as his colleague in San Francisco. Last month a Federal Judge in New York City denied a motion seeking to dismiss a similar lawsuit against the Trump Administration order in a ruling that cited many of the same grounds as the previous two orders and which also cited in support of its conclusions rhetoric from the President both in his speeches and in his Tweets. Finally, in what many saw as a major setback for the Administration, the Supreme Court declined to disturb the injunction in the San Francisco case, meaning that the government will be forced to go through the Ninth Circuit to appeal that case. So far, there has been no other action in any of these cases and each of the injunctions remains in place although, as noted, the order entered yesterday has been stayed for ninety days. Judge Bates’s order does differ from the previous DACA orders in that, in addition to keeping the program in place, it also directs the Trump Administration to begin accepting new applicants again. If that provision survives, it would effectively mean that DACA was back in full force and effect as if the President had not acted last September at all.

In his original order, Judge Bates found that the Administration had failed to follow the provisions the Administrative Procedure Act (APA) in several respects when it repealed the regulations that were put in place to create the DACA program. As I’ve noted before, the APA is a law that governs the actions of regulatory agencies and other Executive Branch departments and prescribes the manner in which those entities must act when establishing or repealing regulations. Among other things, the law requires that, except in certain extraordinary circumstances, the agency must put any new rule it seeks to place in the Federal Register, including the repeal of regulations, up for what is called a ‘notice and comment’ period that allows members of the public and interested parties to put on the record comment and evidence regarding their position on the proposed rule. The proposed regulation cannot go into effect while this comment period is in effect, and the agency is generally required to consider each of the comments submitted on their own merits. The APA also requires that any proposed rule, rule change, or repeal be based on some kind of objective evidence.

In this part of his original ruling, Judge Bates found, as his brethren in San Francisco and Maryland have found, both that the ‘notice and comment’ provisions of the APA do in fact apply to the DACA repeal order and that the Administration failed to comply with that part of the law when it repealed DACA last September. Theoretically, this is a violation of the APA that could be easily cured by the Administration simply withdrawing the order and resubmitting it via the prescribed provisions of the APA. So far, though, that step has not been taken in any of these cases. In addition to not following these procedural steps, Judge Bates also found that the Administration had not provided anything that can remotely be described as substantive evidentiary support for the decision to repeal the relevant regulations, although he doesn’t make clear exactly what that would consist of that would satisfy this part of the law.

Judge Bates stayed his original ruling for three months to give the Administration time to submit evidence in support of the decision to repeal DACA that would satisfy the requirements of the APA. He made clear at the time, though, that if the Administration failed to do so, or if the evidence it submitted still did not provide a sufficient factual basis for the regulatory decision then the entire injunction, including those parts that require the Administration to resume accepting applications from persons not currently covered by the program as well as renewal applications from current DACA beneficiaries would go into effect. In the ruling issued last week, Judge Bates made clear that the evidence that the Administration had submitted was wholly insufficient to justify repealing the program and did not meet the requirements of the APA that require administrative decisions to be supported by the kind of “substantial evidence” that the APA requires for such decisions. Since the government failed to meet this standard, Bates ruled, the injunction should go into effect. As he did last time, Judge Bates put the ruling on hold, but in this case, the period is only 20 days instead of three months and is primarily intended to be sufficient time for the government to make a decision on whether to appeal the ruling.

The Plaintiffs in this case also raised a serious of Constitutional objections to the Trump Administration’s actions, including violations of the Equal Protection and Due Process Clauses. Judge Bates determined, however, that he did not need to rule on these claims at this time due to the fact that he had already found that the Administration had violated the APA and other provisions of Federal law when it tried to repeal DACA. While the previous DACA rulings have addressed both the statutory and Constitutional arguments that the Plaintiffs raised in those cases, this is not an unusual position for a Court to take. All it really means is that the court has withheld ruling on those issues but could easily return to them if it was deemed necessary, or as part of a final ruling on the merits.

This case and the other cases that have put the Administration’s DACA order on hold are not the only cases pending in Federal Court regarding the DACA program. In May, Texas and six other states filed a lawsuit in Federal Court in Texas seeking to have the original DACA Order handed down by the Obama Administration in 2012 struck down. The Trump Administration joined that effort in June, a somewhat unusual move given the fact that it would ordinarily be the job of the Administration to defend a Federal law or program when it is being challenged in court. In any case, there is a hearing scheduled in that case in Texas scheduled for next week and a ruling could come at any point after that hearing, although it will likely be several weeks at least before we hear anything from the presiding Judge. Given the conservative nature of the Federal Courts in the Fifth Circuit, of which Texas is a part, it’s entirely likely that the Judge will issue an order finding the original DACA program in violation of the law, a ruling that would create some rather obvious conflicts with the rulings from the courts noted above that would likely mean Supreme Court review could end up being expedited.

Here’s the opinion:

NAACP Et Al v. Trump Et Al Opinion by Doug Mataconis on Scribd