DREAMers Win Their Second Court Case to Preserve DACA...and Probably Guarantee the Program Dies


A month ago, a San Francisco court ruled that it was illegal for the Department of Homeland Security to terminate the DACA program. The judge ruled that no matter that the program is established by a memorandum issued by a former Secretary of Homeland Security, that it does not have Congressional approval, and that it probably is unconstitutional, it would be a shame to throw all these fine young pillars of the Republic out of the country because of mere law.

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.

Alsup is the guy who was just slammed by the Supreme Court for ordering the government to turn over pre-decisional memos to the defense, something that is simply not done.

The government decided to bypass the Ninth Circuit and appeal directly to the Supreme Court.

Now another court, this one in New York City, has also ordered the program retained.

For the second time in two months, a federal judge has stepped into an intense political fight over immigration policy, issuing an injunction that orders the Trump administration to keep in place the embattled program known as DACA, which protects young undocumented immigrants from deportation.

The nationwide injunction, issued on Tuesday by Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, came one month after a court in California also ruled that the administration needed to spare DACA, or Deferred Action for Childhood Arrivals. Judge Garaufis’s ruling in many ways echoed the one issued by Judge William Alsup of Federal District Court in San Francisco. But it also offered additional reasons for why DACA should remain in place as the case continues through the courts, and it detailed the harms that its repeal would cause to young immigrants and others.

Much like the San Francisco case, this one is devoid of any reason why an agency that establishes an extra-legal program is required to retain that program in perpetuity. And this judge, too, was blatantly hostile to Trump and Attorney General Jeff Sessions and to the government’s case:

Since the Trump administration’s decision to end the program, Judge Garaufis wrote, more than 100 DACA recipients a day have been losing their protected status — a number, he noted, that could rise to as many as 1,400 a day once the program officially ends on March 5. All of them could face deportation, he said; some may face the loss of health care, imposing burdens not only on the immigrants themselves, but also on public hospitals. Employers will be hurt as DACA recipients lose their jobs, Judge Garaufis added, “resulting in staggering adverse economic impacts” that could include up to $800 million in lost tax revenue.

Ending DACA would also have “profound and irreversible” social costs, Judge Garaufis said, as hundreds of thousands of recipients are separated from their families. “It is impossible to understand the full consequences of a decision of this magnitude,” he wrote.

Though he has repeatedly said that he would prefer Congress, not the courts, fix DACA, Judge Garaufis has from the start of the case had tough words for the government in general and for Mr. Trump specifically. At a hearing in January, he slammed Mr. Trump for his “recurring redundant drumbeat of anti-Latino commentary.”

“This isn’t ordinary,” Judge Garaufis said. “In this country, in over 250 years, it’s extreme, it’s recurrent and it’s vicious.”

At the same hearing, Judge Garaufis also took a shot at Mr. Sessions, who had rebuked him at a speech in October for an earlier remark the judge had made calling the repeal of DACA “heartless.” Citing the speech, Judge Garaufis said in open court that Mr. Sessions “seems to think that courts don’t get to have their own opinions.”

In his ruling on Tuesday, Judge Garaufis based his decision to keep DACA in place for now on the Administrative Procedure Act, which forbids the government from acting arbitrarily or capriciously in changing federal policy. He noted that lawyers for the government had initially claimed that DACA was ended out a fear that the program would be struck down as illegal, much as a federal court in Texas had done in 2015 with a similar program known as DAPA, which protected the parents of young immigrants.

But, Judge Garaufis wrote, “the administrative record does not support defendants’ contention that they decided to end DACA for this reason.” In fact, he added, the government had showed “a failure to explain their decision” at all.

In our society, policy decisions are the purview of the executive branch and the legislative branch. No one has to like them or agree with them or think they are wise or fair. The test is really very simple: does the body that made the decision have the legal authority to do so. In this case, it is not even a close call. If booting DREAMers (and I’m warming to the idea more and more every day) throws New York into an economic depression, that is not a concern for a single federal judge. That is something the political branches and the voters need to address.

But, as law professor Josh Blackman notes, the decision made in New York could very well spell the end of DACA.

I suspect that when SCOTUS hears this case, they will determine that a program established by a memo issued by one administration can be eliminated by the withdrawal of the memo by the following administration. Any other decision means that all administrations are bound by the decisions of their predecessors. I also suspect that the Supreme Court will put an end to these Trump-centric decisions that obvious hinge upon a judge’s personal animus towards the administration.