DACA

A California Judge Overstepped in Ordering Trump to Keep DACA

His heart is in the right place, but his conclusion is faulty.

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Neither liberal nor conservative judges seem able to do immigration law right. The conservative Fifth Circuit Court erred in 2015 when it halted Deferred Action for Parents of Americans (DAPA), the Obama administration's program giving undocumented parents of American citizens a two-year reprieve from deportation. And this week a Northern District of Californian judge, Clinton appointee William Alsup, was equally wrong in issuing an injunction barring the Trump administration from scrapping DAPA's precursor: Deferred Action for Childhood Arrivals (DACA). DACA gave a similar reprieve to about 700,000 undocumented aliens brought to this country as children. Alsup not only ordered the administration to keep the program in place but also to renew the expired DACA status of 15,000 or so Dremaers till the case is resolved.

The judge's intentions are laudable. But when it comes to immigration enforcement, the executive has vast discretion to set priorities. It can decide to throw the book at immigrants or not as it wishes. Courts can't really stop it.

I argued back in 2015 that conservatives accusing the Obama administration of engaging in a "power grab" by implementing DAPA were wrong. The Immigration and Nationality Act and other laws have explicitly given the president huge grants of authority to enforce the country's immigration rules. An executive can't unilaterally hand green cards or citizenship to foreigners, but he can decide whose deportation gets prioritized and whose is formally deferred. And those who are granted a deferral also, by statue, become eligible for work authorization and drivers' licenses, because it makes no sense for people to be allowed to live in the country while being barred from earning a living or driving to their jobs.

But by the same token, an executive can also choose not to defer deportations. He can launch mass deportations of unauthorized foreigners if he wants. That's odious, but sadly, it's legal.

Alsup's ruling admits that an executive has wide-ranging authority to "replace old policies [on immigration enforcement] with new policies." So why did he rule against the Trump administration? Because instead of simply invoking the administration's discretionary authority, Attorney General Jeff Sessions offered a legal argument against DACA that the judge found manifestly faulty. This made Sessions' decision "arbitrary, capricious, and an abuse of discretion," Alsup claimed, giving him solid grounds to overrule it.

Alsup is right about Sessions' argument, yet wrong in his final conclusion.

Sessions claimed DACA was illegal because Obama created it "without any proper statutory authorization." In fact, he insisted, it was an "unconstitutional exercise of authority by the Executive Branch" because Obama was trying to accomplish an end that Congress expressly said it didn't want when it repeatedly declined to pass the DREAM Act, a bill that would have given undocumented minors (known as "DREAMers") a path to permanent lawful residency and citizenship.

Every part of that claim is false, and Alsup did a spectacular job of debunking it.

For starters, DACA grew out of a long history of discretionary relief programs. In 1956, the Eisenhower administration gave relief to tens of thousands of refugees after the failed Hungarian revolution. Ronald Reagan instituted the Family Fairness Program, which without any statutory authorization extended voluntary departure to children whose parents were in the process of obtaining legal status under the 1986 "amnesty" bill. George H.W. Bush extended this program to cover spouses of such aliens.

Nor did such programs only apply to a small number of individuals whose petitions were considered one by one, as DACA opponents like to argue. They offered relief to large classes of people—in Bush's case, 1.5 million spouses.

If Congress had thought any of this was wrong, it would have objected. But it didn't. Congress understood that a nation's law enforcement needs are infinite and its law enforcement resources are finite. The executive therefore deserves wide latitude to set priorities. That's why, even though the practice of indefinitely deferring deportation against classes of aliens began as early as 1975 without express statutory authorization, both the Supreme Court and Congress soon accepted it as standard practice. Congress explicitly referred to deferred deportation as a legit practice in the 2005 REAL ID Act, even requiring the executive to hand drivers' licenses and work authorization to unauthorized aliens once they had been handed a formal reprieve.

If Congress had stepped in and explicitly barred an administration from protecting a certain class of aliens, things would of course be different. And indeed, Sessions believes that by failing to pass the DREAM Act, Congress effectively signaled that it didn't want to protect the class protected by DACA. But as Alsup noted, DACA and the DREAM Act are hardly identical. The DREAM Act would have offered permanent lawful status. DACA offers only a two-year, revocable reprieve from deportation.

Sessions also invoked the Fifth Circuit Court's decision to overrule DAPA to justify revoking DACA, arguing that DACA is riddled with the same legal defects that plague DAPA. But that too isn't true.

One reason the Fifth Circuit found DAPA unlawful is that Congress had created an elaborate process for parents of American citizens to gain sponsorship. If DAPA were allowed to stand, it said, that would constitute an end-run around the process. That reasoning is also flawed: The sponsorship process applies for permanent residency, and DAPA, like DACA, merely offers a temporary reprieve from deportation. In any case, there is no analogous, family-based process for DREAMers, so they aren't doing any end run around anything. The rationale for extending them relief is that they had no say in being brought to this country without authorization and hence had no intent to break the law.

Alsup also pointed out that it was one thing to scrap DAPA, given that it hadn't been implemented. It's quite another to eliminate DACA, given that it has been in effect for five years and 700,000 people rely on its protection. Ninety-one percent of those people have jobs, and 45 percent are enrolled in school. If they are unable to renew their status, all of this would be jeopardized, even if Congress subsequently passes a fix.

Alsup's heart might be in the right place, and Sessions' case is certainly flawed. But as George Mason University law professor Ilya Somin notes, "Sessions' analysis doesn't have to be right to serve as some minimal, not completely arbitrary, justification for ending DACA." Alsup's ruling is highly likely to be overturned.

What one executive giveth, another can taketh away. Courts simply aren't a good venue to seek reliable protections for DREAMers. That is Congress' job, and the friends of freedom should fight tooth and nail to make sure it does it.

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  1. Absent an amendment, the constitution only grants Congress a power to regulate naturalization, not immigration. While the courts have stretched naturalization to include immigration, I’d argue that the federal government’s only current constitutional power with regard to immigration is to levy an excise tax on immigrants when they enter the country.

    1. That seems to me to be sophistry. How exactly does Congress have authority over naturalization without authority over immigration? It does not seem that the two are separable in any rational fashion. In fact, it sounds like the pro-gun control crowd’s parsing of the 2nd Amendment.

      1. Well, it means you could set rules for who is a citizen and how they become one but, presumably, even if this idiotic way of reading things was true it would leave open many, many doors to prevent people who are not citizens from having jobs or conducting business in the United States so it is indeed Stormy’s typical sophistry.

        1. Where in the Constitution is any part of the government granted the power to ban people form having jobs or conducting business in the United States?

          1. …so have you read what they’ve interpreted the commerce clause into these days? I guess now is the moment to get all originalist and disprove your own assertation, or are we selectively deciding when to be originalist and when to be revisionist?

          2. Art. I, Section 9 authorizes Congress to regulate migration of persons to states after 1808.

      2. Re: Mickey Rat,

        How exactly does Congress have authority over naturalization without authority over immigration?

        Your beef is with the Constitution, not with the logoc of it.

        1. Actually our beef is with your baseline misunderstanding of what naturalization means. I’m sure if you split that hair enough you’ll find that it’s actually an argument for the status quo, but this of course assumes you’re capable of thinking.

          1. Naturalization means becoming a citizen. Immigration is not a requirement for citizenship and citizenship is not a requirement for immigration.

            1. The question is less what those mean now, and more what did they meant when they were written down, although the very concept would likely be alien to the forefathers since labor protections of the sort we have today were not even a glimmer in their eye.

              That said, functionally if you try to split those two things apart what you have done is create a permanent underclass of non-citizen workers who don’t receive any of the benefits of the society they pay into.

              Does that sound familiar?

      3. It does not seem that the two are separable in any rational fashion.

        And yet they are two independent things. You can do one without doing the other with no problem.

    2. Naturalization is a process of immigration.

      1. Naturalization is a process of immigration.

        That’s a lie. Native Americans do not “immigrate” when the US government grants them citizenship.

        Trumpism has turned many into idiots who can’t think logically. All hail Plankton!

        1. So all that land ‘Native Americans’ live on isn’t actually a separate nation. This is good news, I’m going to go and build me a house on that there land. Since it’s already part of America I’m sure no bad things will happen since you have assured us that borders are not real and nations do not exist.

          1. Borders and nations exist as much as governments and rights exist. They are ideas that people act upon.


            1. Borders and nations exist as much as governments and rights exist. They are ideas that people act upon.

              Yes, obviously. OMS does not believe in borders or nations though, so…I think this is directed at the wrong person.

        2. That’s a lie. Native Americans do not “immigrate” when the US government grants them citizenship.

          “Native Americans” are “granted” citizenship the way most other Americans are, namely at birth. Therefore, they aren’t naturalized and they don’t immigrate.

          Trumpism has turned many into idiots who can’t think logically.

          As you keep demonstrating.

      2. Not all immigrants want to naturalize and that’s okay. The Founders included Art. I, Section 9 to cover Congress being authorized to regulate immigration and slavery after 1808.

    3. The US Constitution not only grants the federal government the power to protect the US and the states “from invasion”, it unconditionally mandates that it do so.

    4. Stormy Dragon|1.11.18 @ 4:17PM|#
      Absent an amendment, the constitution only grants Congress a power to regulate naturalization, not immigration.

      As has been explained to you multiple times, Art I, Section 9 enumerates Congress’ power to regulate migrants after 1808:
      The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

  2. We’ve secretly replaced Shikha’s normal open-borders supporting/Trump-bashing column with one where she actually defends Trump’s executive discretion, let’s see if anybody notices before they start attacking the column for blaspheming against their Cheeto Jesus.

  3. “His heart is in the right place”
    No it’s not. He doesn’t give a shit about anything other than being part of the “resistance”.

    1. For a judge, if you heart is in the right place, you are adhering to the oath you took.

      Anything else is not the right place.


  4. And those who are granted a deferral also, by statue, become eligible for work authorization and drivers’ licenses, because it makes no sense for people to be allowed to live in the country while being barred from earning a living or driving to their jobs.

    …well uh…it’s less that they’re ‘allowed to live in the country’ and more ‘we’re going to deport you, we just don’t know when yet’. I’m sure you can see the difference.

    1. Depends on the temporary definition of temporary.

  5. The law is a prescription for conduct and action. It has no “heart”. When the law is violated by the the ones entrusted to uphold it, the peons are cast adrift. Some laws are bad, and should be changed. There are lawful methods to change or abolish bad laws.

    Relying on the good intentions of a judge, or a president, is a fool’s errand. We suffered through 8 years of a president acting like an emperor. I prefer laws fairly and honestly followed.

    Trump is not a nice guy, but he is an excellent president.

  6. Wasn’t Obama’s executive order on DACA shot down in the courts? I vaguely remember at least some part of it being ruled unconstitutional. The government lied that they were not issuing the wavers after the court order them to stop, and they were caught doing so. Sound familiar?

    1. Citation?

      1. Here’s part of it.

        here

    2. Wasn’t Obama’s executive order on DACA shot down in the courts?

      The courts shot down DAPA (deferred action for parents), saying the president exceeded his authority.

      DACA would probably not have survived a serious challenge either (actually, the legal case for it is even weaker), but was never challenged like DAPA.

      1. Ahhh.

  7. I wholeheartedly believe that the agenda with all of this is to force Congress to do their job and deal with these contentious issues. They have been talking about border/immigration reform for decades but have been unwilling to act. Trump (him or his team) are backing Congress into a corner where they will have to choose which parts of the reform they must have and which ones they don’t like but can live with.

    1. Well, that and using the DREAMers to extort $18B for a border wall (that Mexico will definitely sort of not maybe pay for that also doesn’t need to be a wall or actually cover all the much land but will involve eminent domain takings from American citizens.)

      I agree that Congress has pretty much given up on the hard choices and pushed an awful lot of its responsibility to the president as a ploy to keep their jobs. I’m not seeing how Trump is able to squeeze more personal wealth out of this situation and it doesn’t make him look any better to his voters (I almost said “constituents” but that would include me and he clearly only cares for people who like him, so…)

  8. “Dremaers”

    ordered it to renew the expired DACA status of the 15,000 or so Dremaers till the case is resolved.

    Is that an immigrant who has learned to use a Dremel?

    … and what the fuck is going on with reasonable???

  9. Is this what to expect from DREAMers?:

    Google: San Diego Tribune ruben navarrette one dreamers missed lesson 2015jun24

    Ruben Navarrette: One Dreamer’s missed lesson in good character

    And just who is the typical DREAMer?

    Google: Vaughan/Research Dreamers Contradicts- Public-Image
    Research on Dreamers Contradicts Public Image

    ” 73 percent of DACA recipients he surveyed live in a low-income household (defined as qualifying for free lunch in high school);
    22 percent have earned a degree from a four-year college or university;
    20 percent have dropped out of high school;*
    20 percent have no education beyond high school and no plans to attend college;
    59 percent obtained a new job with a DACA work permit, but only 45 percent increased their overall earnings; and
    36 percent have a parent who holds a bachelor’s degree.”

    1. Google: chicago tribune Don’t buy into all of that rosy PR about DACA

      Google: troy record Ruben Navarette: Dreamers: Don’t let Dems fool you

      “Dreamers, this is your wake-up call. Democrats want you to think they’re in your corner. But it’s not so.

      The Democrats failed you. Don’t let them fool you.”

  10. “His heart is in the right place, but his conclusion is faulty.”
    So the rule of law means something?
    I’m one of the resident ‘open borders’ guys; I’ve seen folks from Central or South America show up here with what I presume are no papers whatsoever and kick ASS! Those are some ambitious folks!
    But until the laws are changed those choices reside where they do, and the courts have no business enacting legislation.

    1. I’ve seen folks from Central or South America show up here with what I presume are no papers whatsoever and kick ASS! Those are some ambitious folks!

      Well, and you can see a enormously larger number of “folks from Central or South America” who are a massive net drain on federal and state budgets. That’s why the US should have a race-blind immigration policy that admits people with the highest ability to contribute to the US, not a bunch of illiterate peasants who ignore US law.

      And make no mistake about it: if “open borders” succeeds, people like me leave for greener pastures. I have spent enough time in my life in decaying socialist and social welfare states to want to repeat the experience in the US.

  11. “The sponsorship process applies for permanent residency, and DAPA, like DACA, merely offers a temporary reprieve from deportation.”

    I think it is safe to say the media nor Congress nor the general public believe this. Was it hard to write this, didn’t it seem disingenuous, after the furor caused over rescinding TPS?

    These articles are bollocks. I am tired of Reason publishing these emotional screeds, telling me what to think based off emotional BS. I stopped reading Fox and CNN for the same reason. I thought here would be better?

    The comments section is grand though, good group of people by in large. Better than the Reason staff in my estimation.

    1. For a Shikha article this is amazingly reasonable. It goes against the grain of her Trump bashing and open borders absolutism in almost every other article. I actually learned something in this as well. I hadn’t heard of DAPA as a policy despite knowing that people were arguing that you can’t deport an illegal immigrant because they have a child here. The news media focused on DACA, but between that and DAPA it’s pretty clear that the Obama administration was trying to get amnesty and keep the illegal immigration flowing.

  12. How is it ‘laudable’ for Equality under the Law for a Socialist, Globalist Judge to flaut the Rights of Natural Born United States Citizens?

    How is it ‘laudable’ for a Judge – without standing or Authority! – to endanger the greatest Nation (The United States) by BREAKING the law VIA disbarable Offenses in Legislation from the Bench?

    Easy: it’s not!

    Go organize some more lawless, Alt-Left Violence at Berkeley where your Criminal Ilk are finally getting their due as your revolting, obviously anti-US and anti-Law drivel has no place here, Shihka!

    This is Supposed to be for Law and REASON – NOT Lawless Unethical Invasion Cheerleaders!

  13. This is the problem when any president chooses to govern “with a pen and a phone” instead of engaging Congress to pass legislation. What one giveth, another can taketh away.

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