Tuesday, March 6, 2018

Upshot: The National Injunctions Stand -- DACA Stays In Place. We May Safely Ignore Judge Titus (For Now).

All this 30 page Maryland memorandum opinion, overnight does. . . is (once again) guarantee the Supremes will decide the issue. Yawn. It creates a trial level (not any Circuit level) split, but still. . . we all know the Supremes will take this issue up -- likely as early as Summer 2018. [Why? Because 45 is losing, day by day in California. And he cannot stand that -- his March 6, 2018 line in the sand. . . means absolutely. . . nothing, now.]

The first 10 pages of Judge Titus' opinion tell us quite a bit about his open politicking -- in his written decision-making. He leads by citing Rodney King (and to my eye, not with sympathy -- a three decade old wound, that has literally nothing to do with this instant DACA case), and then declaring "DACA: an Act of Desperation Born of Frustration with a Paralyzed Congress" (in fact, using such opinionated rhetoric as headlines for the section-markers, of his opinion!), he immediately gives away that what is coming. . . purely a political, not legal, opinion. He does dress it up with a few legal caveats -- but this is a political, not legal opinion -- as it treats procedural due process (the core argument of the DACA kids) with scarcely a nod.

Even more tellingly, consider this passage (for what it fails to say):

. . . .Complicating the picture for some observers is the unfortunate and often inflammatory rhetoric used by President Trump during the campaign, as well as his Twitter pronouncements, both before and after his election. Thoughtful and careful judicial review is not aided when the President lobs verbal hand grenades at the federal courts, the Department of Justice, and anyone else with whom he disagrees. . . .

As disheartening or inappropriate as the President’s occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission. . . .

What Judge Titus leaves unsaid, and (as I say) tellingly so, is that the President has made disparaging remarks, based on ethnicity, about the very class of persons he regards as Dreamers or DACA kids, even after his election. The President has further averred that his tweets are "official statements of the Commander of the Executive Branch" -- the office he holds.

I will note that some 10 to 20 other federal judges and courts (over nearly 16 months now) have refused to turn a blind eye to Mr. Trump's manifest racial and ethnic animus. But Judge Titus takes great pains to do just that -- go blind, and deaf, and dumb.

Were the law to support Judge Titus's tragically cramped 18th Century view of his duties, it is probable that Brown v. Board would have come out the other way, and Dred Scott would still be good law.

Judge Titus ought to drag his sensibilities into the current millennia.

Onward -- off to find a great piping hot bowl of lobster bisque, on a frigid rainy gray afternoon. . . .


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