Donald Trump is trying to get Congress to come to table in a deal by having the court give him the power to stop the Deferred Action for Childhood Arrivals (DACA or Dreamer’s) program…
The lower courts and the Supreme’s have said he has to have a ‘reason’ beside HE just thinks the law is ‘unconstitutional’…(The judges are saying that ain’t HIS job….)
In the DACA case, Solicitor General Noel J. Francisco said in a brief to the Supreme Court that the judiciary has no authority to keep the administration from revoking “a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
He added: “At best, DACA is legally questionable; at worst, it is illegal.”
It might seem logical that a program implemented by one president, Obama, could be rescinded by another, Trump. But California Attorney General Xavier Becerra (D), who is leading one of the lawsuits against DACA’s revocation, said that the administration’s argument ignores an important difference.
“President Obama followed the law to put it in place,” Becerra said in interview. “Donald Trump did it the Donald Trump way. You can’t change the law by breaking the law.”
The Trump administration moved to scuttle the program in 2017 after Texas and other states threatened to sue to force its end. Then-Attorney General Jeff Sessions advised the Department of Homeland Security that the program was probably unlawful and that it could not be defended.
Sessions based that decision on a ruling by the U.S. Court of Appeals for the 5th Circuit, which said that another Obama program protecting immigrants was beyond the president’s constitutional powers. The Supreme Court deadlocked 4 to 4 in 2016 when considering the issue.
In their book “Border Wars: Inside Trump’s Assault on Immigration,” New York Times reporters Julie Hirschfeld Davis and Michael D. Shear describe tense White House meetings between immigration hard-liners such as Sessions and Trump aide Stephen Miller on one side, and others such as Elaine C. Duke, then the acting homeland security secretary, on the other.
Duke relented under pressure, the authors said, but refused to cite policy objections in her short memo saying the administration was winding down the program. Instead, she relied solely on the fact that Sessions had said the program was unlawful.
That has put the Trump administration in an unusual position. Instead of arguing broad executive power over immigration, as it and other administrations have in the past, it has said the program was halted because it was probably unconstitutional.
Washington lawyer Andrew Pincus, who wrote an amicus brief on behalf of DACA recipients, said in a blog post that “such a ‘law made us do it’ rationale let the President avoid political accountability for ending an extremely popular program.”
It has proven unpersuasive to the lower courts, which have said the administration must provide other reasons.
That was at the heart of the ruling from the U.S. Court of Appeals for the 9th Circuit.
“To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” Judge Kim McLane Wardlaw wrote. “We hold only that here, where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”….