A federal judge ruled on January 9 that it is illegal for the President of the United States to stop an illegal government program. Judge William Alsup issued the order in the U.S. District Court for the Northern District of California. Judge Alsup ordered
President Donald Trump to continue President Obama's “Deferred Action for Childhood Arrivals” (DACA) program. Trump had ordered DACA to end on March 5, 2018.
Judge Alsup was appointed by President Bill Clinton. Judge Alsup focused on policy values and not much on legal principles. Such political court opinions, recently out of California, usurping the roles of the president and Congress, are becoming commonplace.
DACA was created on June 15, 2012, by then-Secretary of Homeland Security Janet Napolitano on Obama's orders. Illegal aliens (now adults) who entered the country when they were children were given legal status, work permits, and driver's licenses. The argument is that children cannot be responsible for breaking the law.
Curiously, the lawsuit before Judge Alsup was brought by the same Janet Napolitano who created DACA, now as president of the University of California system, but also by many individual illegal aliens.
Judge Alsup is a trial judge within the liberal region of the infamous U.S. Court of Appeals for the Ninth Circuit. That is, trial-level judges know that they are unlikely to be over-turned by the appeals court in that region. Unless the U.S. Supreme Court gets involved (which is the Supreme Court's discretion), Judge Alsup's order may stand, but in fact is unlikely to.
On September 5, 2017, President Donald Trump issued an order ending DACA. Trump noted that DACA is clearly unlawful. Ten states issued an ultimatum that they would sue to invalidate DACA as illegal if Trump did not end it.
However, Trump ordered that DACA be phased out over time. DACA requires illegal aliens to renew their legal status every two years. DACA made clear that there is no guarantee that the program will continue and there is no right to expect another two-year renewal. Trump ordered the Department of Homeland Security to simply stop accepting new DACA applications or renewals of existing DACA status on March 5, 2018. So no one's status is being cancelled, just not renewed. An illegal alien holding DACA status will enjoy this limited amnesty for the entire two-year term. None can say they lost anything.
Yet Judge Alsup, a leftist judge appointed, you guessed by former President Bill Clinton, ordered that the president must do what the U.S. Court of Appeals for the Fifth Circuit ordered he may not do. On February 16, 2015, Judge Andrew Hanen in the U.S. District Court for the Southern District of Texas issued a nationwide injunction against DACA as being illegal or even unconstitutional. The Fifth Circuit upheld Judge Hanen's injunction. See Texas, et al. v. United States of America, 809 F.3d 134 (5th Cir., November 9, 2015) and 787 F.3d 733 (5th Cir., May 26, 2015).
The U.S. Supreme Court affirmed 4-4. That left the Fifth Circuit's decision as the only final precedent. Furthermore, in this particular case the U.S. Supreme Court has already intervened twice to cut back on Judge Alsup's conduct of the case in the last few months.
Judge Alsup ruled on Tuesday that President Trump did not comply with the Administrative Procedures Act (APA) in ending DACA, even though the Fifth Circuit ruled that President Obama violated the APA by creating it. So Alsup thinks that a program which is invalid under the APA cannot be stopped without going through the APA's rigorous procedures.
Judge Alsup strained to draw a distinction between DAPA (an expansion of DACA to parents) and the original DACA. Alsup's core rationale was that DACA and DAPA are different. But in fact they are really not. The legal arguments for both are identical.
Judge Alsup's injunction on Tuesday is wrong for other reasons. Obama claimed that DACA was based on "prosecutorial discretion" (resulting in "deferred action"). The controversy became whether DACA and DAPA were blanket amnesty or individual DHS agents making individualized decisions about each applicant. But now Judge Alsup's injunction — though technically suspending Trump's order ending DACA — logically implies that DACA is blanket amnesty, not discretion by each ICE agent.
DACA recipients today are generally between 15 and 41 years old. However since they entered without reliable (or any) identity papers, there is no way to know their actual age. We keep hearing incidents of obviously middle-aged men claiming to be 18. They are often confused with children who flooded across the borders in 2014-2016. DACA applies only to children who entered the country before June 5, 2007, before their 16th birthday, and were under 31 years old as of June 15, 2012.
On November, 20, 2014, Obama expanded DACA through several Memoranda signed by then-Secretary of Homeland Security Jeh Johnson, to include millions of illegal aliens who entered as adults if they are related to DACA beneficiaries.
Sheriff Joe Arpaio, with my help as his attorney at Freedom Watch, immediately sued to challenge both Obama's 2012 DACA as well as Obama's 2014 DAPA expansion. A coalition of states led by Texas also filed suit with heavy governmental resources. But they failed to include the 2012 DACA as Sheriff Arpaio had done. Ten of those states threatened to expand their lawsuit to DAPA, as Freedom Watch had done originally, provoking the September 5, 2017, show down.
As I have warned at Freedom Watch, our overwhelmingly leftist judiciary is steadily usurping the powers of the president. Unchecked by fearful or slumbering would-be patriots, courts are swallowing up the constitutional republic left to us by our founders. Our courts have strayed very far from the law and common sense and they must now be reigned in. Go to www.freedomwatchusa.org to support our efforts to do just this.
Larry Klayman, founder of Judicial Watch and Freedom Watch, is known for his strong public interest advocacy in furtherance of ethics in government and individual freedoms and liberties. To read more of his reports, Go Here Now.
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