Judicial Anarchy Over DACA

Another activist judge runs roughshod over the separation of powers.

A federal judge, U.S. District Judge William Alsup, took it upon himself to order that the Deferred Action for Childhood Arrivals program (DACA), put in place by former President Obama’s executive order and wound down towards ultimate termination by President Trump’s own executive order last September, must stay in place at least for the time being. The judge issued a preliminary injunction against ending DACA while lawsuits over President Trump's decision go forward. The effect of Judge Alsup’s order is to throw out a temporary lifeline to the illegal immigrant “Dreamers” who have or have had DACA protection to be able to continue staying and working in the country while they apply for renewals. 

Needless to say, President Trump was not happy with this latest example of judicial overreach.

"It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts," President Trump tweeted, referring to the District Court judge from the United States District Court for the Northern District of California.

Judge Alsup’s order effectively overrides, at least temporarily, the right of the current duly elected president of the United States to use his constitutional executive powers, through the issuance of an executive order, to rescind an executive order of the previous president. Judge Alsup has decided that the interests of immigrants in the country illegally and of the University of California outweigh any other considerations. Protecting the national security of the citizens of the United States and concerns over whether Obama had overstepped the constitutional bounds of his executive authority by ordering DACA’s implementation in the first place play second fiddle in Judge Alsup’s mind to the welfare of illegal immigrants and of the university at which they are students or staff. Notably, one of the plaintiffs in this case – Janet Napolitano, serving in her capacity as chancellor of the University of California – is using California taxpayers’ money to defend the constitutionally shaky DACA which she helped to create as Secretary of Homeland Security in 2012.

Judge Alsup bizarrely complained that “the new administration didn’t terminate DACA on policy grounds.  It terminated DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority.” Because that conclusion of law might turn out to be wrong, Judge Alsup concluded, the Trump administration’s decision to terminate DACA on those grounds is somehow defective.

Judge Alsup then remarked that President Trump evidenced his support for DACA through his various tweets. The judge tried to use “the reasons tweeted by President Trump” in support of DACA to find that “the public interest will be served by DACA’s continuation.” In a glaring example of utter sophistry, Judge Alsup dismissed the importance of the fact that President Trump indicated his desire for DACA to be addressed properly by Congress as part of an overall legislative reform of the nation’s immigration system. Using circular reasoning, Judge Alsop concluded that President Trump had no right to end Obama’s executive order on the basis of his legal concerns and his desire to refer the whole DACA issue to where he believed it legally belonged - Congress.

First of all, there is nothing wrong with a president, who disagrees with the rationale used by his predecessor to justify the legality of an executive order, to rescind that executive order through his own subsequent executive order. This is especially true when Obama's DACA executive order was never intended to be anything but temporary in the first place. It does not matter whether or not it ultimately would have turned out that Obama technically had the discretionary authority to do what he did. President Trump is not bound by what Obama did in this case in testing the limits of his authority. The current president has the authority in his own executive discretion to take a more conservative legal course in rejecting the continuation of the executive decision of his predecessor.

Judge Alsup overlooks the fact that Obama himself had doubts initially whether he could issue the DACA executive order on his own authority. Judge Alsup apparently believes that Obama was within his rights to issue his DACA executive order. Even if that were the case, which is doubtful, it is irrelevant. The judge was not reviewing an action by President Trump to overturn a law or even a regulation unilaterally. The judge was unconstitutionally placing himself in the shoes of the president of the United States and substituting his opinion as a judge as to which executive order issued by a prior president, no matter what its merits may be, his successor can keep or scrap as the nation’s current chief executive officer.

Secondly, in making his own statement on his decision to rescind the DACA executive order, President Trump referred not only to the legal issues involved. He expressed his concern that “any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve.” That is a policy judgment about what he believed should be the priority in enacting any changes to current immigration law or enforcement actions.  Judge Alsup chose to ignore the policy grounds for President Trump’s decision because the judge cares less about the welfare of American citizens than he does about the welfare of the illegal immigrant “Dreamers.” 

“The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status,” Judge Alsup ruled. “This would tear authorized workers from our nation’s economy and would prejudice their being able to support themselves and their families, not to mention paying taxes to support our nation.  Too, authorized workers will lose the benefit of their employer-provided healthcare plans and thus place a greater burden on emergency healthcare services.”

All that may well be true, but it is not up to Judge Alsup to substitute his policy judgment for that of Congress, where the issue needs to be resolved one way or the other. President Trump simply adhered to the rule of law in ending his predecessor’s executive order of dubious constitutional merit, which has no permanence anyway by definition.  And President Trump did not cut off the DACA program all at once, subjecting individuals eligible for DACA protection to immediate deportation. Instead, President Trump ordered what he called “an orderly transition and wind-down of DACA, one that provides minimum disruption" and gave Congress “a window of opportunity for Congress to finally act.”

Assuming the Trump administration appeals Judge Alsup’s decision, the left-leaning 9th Circuit may well uphold it, as it has done with other questionable lower court decisions. However, it is virtually certain to be overturned by the Supreme Court if it goes that far. Last December, the Supreme Court overruled both Judge Alsup and the 9th Circuit with regard to ordering the Trump administration to disclose more internal documents concerning its decision to rescind DACA. Without ruling on the merits of the Trump administration’s decision to rescind DACA, the unsigned Supreme Court opinion indicated that the government’s arguments against the document disclosure order, including that the decision to rescind DACA is unreviewable, deserved more serious consideration by the lower courts.

Judge Alsup’s latest decision breached the separation of powers in an outrageous fashion. It must not stand if the constitutional system of checks and balances is to mean anything at all. Moreover, Judge Alsup’s judicial overreach demonstrates the importance of filling any vacancies in the federal courts, particularly within the 9th Circuit, as soon as possible with judges who adhere strictly to the law as it is written, not as they would like it to be written. 


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