A second federal appeals court has blocked the Trump administration from rescinding former President Barack Obama’s controversial, unilaterally imposed Deferred Action for Childhood Arrivals (DACA) program, accepting challengers’ unusual argument that in this case, a president cannot undo a predecessor’s executive action.
The new decision, and other court rulings on the legality of DACA, are expected to head to the Supreme Court.
In January 2018, U.S. District Court Judge William Alsup, appointed by President Bill Clinton in 1999, found the government’s belief the program was unlawful seems to be “based on a flawed legal premise.” In November of that year, a three-judge panel of the Ninth Circuit Court of Appeals upheld Alsup’s ruling.
Under political pressure to carry out immigration reforms unilaterally, in October 2010, Obama resisted acting on DACA, saying, “I am not king. I can’t do these things just by myself.”
With “respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” he added in March 2011. In May of that year, he said he was unable to “just bypass Congress and change the [immigration] law myself. … That’s not how a democracy works.”
But, in 2012, Obama implemented an administrative amnesty by creating the DACA program in defiance of Congress, which had repeatedly refused to vote for the proposal. DACA shields between 700,000 and 800,000 of noncitizens—who were brought to the United States as children—from removal from the country and is deeply unpopular with conservatives and constitutionalists who insist the Constitution gives Congress, not the president, the power to create immigration laws.
In January, President Donald Trump said DACA concentrates a “scary” amount of power in the presidency.
“If the Supreme Court rules that President Obama was wrong, which they should because—by the way, if he was right, then I’ve been given tremendous power,” Trump told reporters. “Can you imagine me having that power? Wouldn’t that be scary?”
“If President Obama is allowed to do what he did on DACA, then I’m allowed to do whatever I want to do on things that, you know, probably a president … doesn’t have the right to do.”
On May 17 in a case known as Casa de Maryland v. Department of Homeland Security, a three-judge panel of the Richmond, Virginia-based Fourth Circuit Court of Appeals ruled 2-1 that the Trump administration failed to abide by the provisions of the Administrative Procedure Act and didn’t adequately explain its rationale for rescission of DACA.
Judge Albert Diaz, appointed by President Obama in 2010, wrote the opinion for the panel, and was joined by Judge Robert Bruce King, who was appointed in 1998 by President Clinton.
The two Democratic appointees held that “DACA’s rescission was arbitrary and capricious because the Department of Homeland Security failed to give a reasoned explanation for the change in policy, particularly given the significant reliance interests involved.”
DACA recipients, in effect, have a right not to be inconvenienced, the two judges found.
“Hundreds of thousands of people had structured their lives on the availability of deferred action during the over five years between the implementation of DACA and the decision to rescind. Although the government insists that Acting [DHS] Secretary [Elaine] Duke considered these interests in connection with her decision to rescind DACA, her Memo makes no mention of them. Accordingly, we hold that the Department’s decision to rescind DACA was arbitrary and capricious and must be set aside.”
Judge Julius Richardson, appointed by President Trump in 2018, filed a dissenting opinion, writing that his colleagues provided “faulty legal reasons for rescinding the discretionary policy.”
The Administrative Procedure Act does not—contrary to Judges Diaz and King—allow the rescission of DACA to be reviewed by the courts, Richardson wrote.
“Enforcement discretion lies at the heart of executive power. The Executive may decide to prosecute, or not prosecute, an individual or a group so long as the reasons for that decision are constitutionally sound and the decision does not violate or abdicate the Executive’s statutory duties. … To hold otherwise permits the Judicial Branch to invade the province of the Executive and impair the carefully constructed separation of powers laid out in our Constitution.”