Not at all surprising to anyone who reads this space regularly, Mr. Trump’s tweets have (yet again) been his undoing, in a court of competent jurisdiction.
The overnight order lasts until a higher court finally resolves the litigation, but applies nationwide and it is a clear victory for Dreamers. Here is the overnight order, by the able Judge William Alsup, sitting in California's Northern District -- and the sharper end, of its spear:
. . . .We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended. . . . For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation. . . .
In short, what exactly is the part of DACA that oversteps the authority of the agency?
Is it the granting of deferred action itself? No, deferred action has been blessed by both the Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting of deferred action via a program (as apposed to ad hoc individual grants)?No, programmatic deferred action has been in use since at least 1997, and other forms of programmatic discretionary relief date back to at least 1956. Is it granting work authorizations coextensive with the two-year period of deferred action? No, aliens receiving deferred action have been able to apply for work authorization for decades. Is it granting relief from accruing “unlawful presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for and obtain advance parole? No, once again, granting advance parole has all been in accord with pre-existing law. Is it combining all these elements into a program? No, if each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?
Significantly, the government makes no effort in its briefs to challenge any of the foregoing reasons why DACA was and remains within the authority of the agency. Nor does the government challenge any of the statutes and regulations under which deferred action recipients obtain the foregoing benefits. . . .
Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94 (1943); Safe Air for Everyone, 488 F.3d at 1101. . . .
For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new applications from applicants who have never before received deferred action need not be processed; (2) that the advance parole feature need not be continued for the time being for anyone; and (3) that defendants may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application. . . .
We are indeed smiling broadly, here in the morning fog, as we head out on foot, to the train. I think -- on executive orders, broadly speaking, Mr. Trump is close to 0 for 24, in the courts. Most batters get sent to the minors, when they strike out twenty four times in a row. Time to send old number 45 down to the Mud-Hens, for certain. . . paging Skipper Mueller -- time to waive this guy outright.
नमस्ते
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