Last week, I posted about an rather insane ruling by a district court judge. In discovering the principle of Perpetual Efficacy of Previous Administration Policies, District Judge John Bates declared than a memo sent to subordinates by former DHS secretary Janet Napolitano establishing the Deferred Action for Childhood Arrivals (DACA) program was not only still in effect but that the memo could not be rescinded without judicial approval. As I said in the post:
DACA is a program that was not established by Congress, it wasn’t established by Executive Order, it wasn’t created by DHS rule-making under the Administrative Procedure Act; it was established by a memo former DHS Secretary Janet Napolitano sent out to her field staff directing them to not deport illegal aliens who allege that they were brought to the US as children.
The implications of the ruling are immense. It means that any administration can hamstring its successors by issuing a blizzard of memoranda, which apparently are assumed to be reasonable, and then requiring its successor to litigate any action taken to ignore or rescind those memos.
Somewhere in the bowels of the Justice Department, someone has attached jumper cables to Jeff Sessions and he’s taken notice of this abhorrent decision.
“We strongly disagree with the district court’s decision on Friday in the Deferred Action for Childhood Arrivals (DACA) case. The executive branch’s authority to simply rescind a policy, established only by a letter from the Secretary of the Department of Homeland Security, is clearly established. The Department of Justice will take every lawful measure to vindicate the Department of Homeland Security’s lawful rescission of DACA.
“The last administration violated its duty to enforce our immigration laws by directing and implementing a categorical, multipronged non-enforcement immigration policy for a massive group of illegal aliens. This wrongful action left DACA open to the same legal challenges that effectively invalidated another program they established—Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA’s implementation was blocked by the U.S. Court of Appeals for the Fifth Circuit and never entered into effect. These two policies declared by officials of the previous administration—by policy letters only—had been considered by Congress and rejected.
“The Trump Administration’s action to withdraw the policy letters simply reestablished the legal policies consistent with the law. Not only did the Trump Administration have the authority to withdraw this guidance letter, it had a duty to do so. As former President Obama previously said, the changes they attempted to effect through this policy letter can only be lawfully achieved by congressional action. The judicial branch has no power to eviscerate the lawful directives of Congress—nor to enjoin the executive branch from enforcing such mandates.
“We have recently witnessed a number of decisions in which courts have improperly used judicial power to steer, enjoin, modify, and direct executive policy. This ignores the wisdom of our Founders and transfers policy making questions from the constitutionally empowered and politically accountable branches to the judicial branch. It also improperly undermines this Administration’s ability to protect our nation, its borders, and its citizens. The Trump Administration and this Department of Justice will continue to aggressively defend the executive branch’s lawful authority and duty to ensure a lawful system of immigration for our country.”
I hesitate to use the word “unprecedented” because since January 21, 2017, the very word has acquired a trite and hackneyed quality, but it may very well be unprecedented for the Attorney General to torch a federal judge’s decision in this manner.
There is good news in this. First off, the odds of this order surviving an appeal is virtually zero. Second, Sessions undoubtedly feels the steely gaze of President Trump focusing on him again and he doesn’t like it. This, in my estimation, explains Sessions’s response to the ruling and virtually ensures he will fight this decision as though his life depended upon the outcome. Lastly, this ruling has undoubtedly burned a lot of good will in the White House. After seeing Chuck Schumer deliberately torpedo a Dreamer deal while the DACA proponents fight in court to keep it alive has probably convinced even the most pollyannish White House aide that DACA is being used as a wedge issue to hurt Trump with his base and they will probably be less likely to even care if DACA goes away.
But if it takes brutal and grotesque judicial overreach and Sessions’s abiding fear of ending up in more of Donald Trump’s tweets to energize him, then I hope Judge Bates hears every case involving the Trump administration for the next six years.
In the spirit of the moment, take some time to enjoy the experience.
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