Trump’s DACA Order Suffers Another Loss In Court

The Trump Administration has suffered another setback in its efforts to repeal DACA.

A third Federal District Court Judge has ruled that the Trump Administration’s efforts to end the Deferred Action For Childhood Arrivals (DACA) program established by President Obama in 2012 were in violation of the law and the Constitution and ordered the Administration to continue accepting new applications as well as barring the revocation of DACA status from those who already have it:

In the biggest setback yet for the Trump administration in its attempt to end a program that shields some undocumented young adults from deportation, a federal judge ruled Tuesday that the protections must stay in place and that the government must resume accepting new applications.

Judge John D. Bates of Federal District Court for the District of Columbia said that the administration’s decision to terminate the program, Deferred Action for Childhood Arrivals, or DACA, was based on the “virtually unexplained” grounds that the program was “unlawful.”

The judge stayed his decision for 90 days and gave the Department of Homeland Security, which administers the program, the opportunity to better explain its reasoning for canceling it. If the department fails to do so, it “must accept and process new as well as renewal DACA applications,” Judge Bates said in the decision.

The ruling was the third in recent months against the Trump administration’s rollback of DACA. Federal judges in Brooklyn and in San Francisco each issued injunctions ordering that the program remain in place. But neither of those decisions required the government to accept new applications.

Judge Bates, who was nominated by President George W. Bush in 2001, described the Trump administration’s decision to phase out DACA as “arbitrary and capricious because the department failed adequately to explain its conclusion that the program was unlawful.”


Under Judge Bates’s ruling, unless the administration can justify its decision within 90 days, the cancellation of the program will be rescinded.

The latest lawsuit was brought by the N.A.A.C.P. as well as Princeton University and Microsoft.

“Princeton higher education and our country benefit from the talent and aspirations that Dreamers bring to our communities,” Christopher L. Eisgruber, the university president, said in a statement. “We continue to urge Congress to enact a permanent solution.”

Stephen Yale-Loehr, a professor of immigration law at Cornell Law School, said that Judge Bates’s ruling, if upheld on appeal, would “benefit tens of thousands of Dreamers.”

Hasan Shafiqullah, director of the immigration law unit of the Legal Aid Society of New York, said the ruling ushered in hope, especially for younger siblings of DACA recipients who, as of last September were ineligible to apply because they were too young.

Yesterday’s ruling marks the fourth time that a Federal District Court Judge has handed a defeat to the Trump Administration and the third 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.

As with the previous orders against the Trump Administration on this issue, the ruling issued yesterday by Judge John Bates, who was appointed to the Court by George W. Bush in 2001 and assumed Senior Status in 2014, strikes down the DACA repeal order on two grounds, both based on the Administration’s failure to follow the laws governing regulatory processes that have been on the books for decades.

On the statutory side, Judge Bates ruled that the Trump Administration violated the provisions of 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 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. In this regard, though, Judge Bates stayed his 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. If it fails to do so, then the injunction, including the provisions that require the Administration to resume accepting DACA applications from persons not presently covered by the program, will go into effect.

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.

As with the previous rulings, the Administration has already indicated that it would appeal this decision. In this case, that appeal lies to the Circuit Court of Appeals for the District of Columbia, which has been especially critical of the Trump Administration in the cases it has reviewed thus far. Any ruling from that Court is some time away, though, and for the time being at least DACA will remain in effect.

Here’s the opinion:

NAACP et al v. Trump by Doug Mataconis on Scribd

FILED UNDER: 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


  1. Paul L. says:

    Administration had violated the APA and other provisions of Federal law when it tried to repeal DACA

    DACA is not a Law or Executive Order. It is a illegal DHS memo.

    Democrats running on Illegal Aliens and Gun Control will guarantee them control of Congress.

  2. HarvardLaw92 says:

    @Paul L.:

    Illegal in what way?

    (You’ll want to be specific in your response, so as to avoid getting shredded …)

  3. Paul L. says:


    What Law gave the Obama Administration DHS the power to not enforce current immigration laws against Illegal Aliens as a policy and not just prosecutorial discretion?

  4. HarvardLaw92 says:

    @Paul L.:

    That would be the Constitution (and you didn’t answer the question).

    Meanwhile, I suggest that you read the memo which sets out the specifics of this program as a limitation with respect to the exercise of prosecutorial discretion.

    Deportations are administrative actions handled by DHS. If the Secretary of DHS wishes to limit how his/her department handles the responsibilities assigned to it, that’s entirely legal.

    Now – get back to me when (if ever …) you actually have a substantive argument.

  5. Paul L. says:

    State of TEXAS, Appellant v. UNITED STATES of America, et al., Appellees.
    Case No. 15-40238 Dist. Ct. Op., 86 F. Supp. 3d

    The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction. The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.”

  6. HarvardLaw92 says:

    @Paul L.:

    You appear to have confused DAPA with DACA. I can’t say that I’m surprised, although why you guys insist on trying to play Perry Mason escapes me.

    Try again, armchair …