A three-judge panel on the Ninth Circuit ruled yesterday that the Trump administration must continue the Deferred Action for Childhood Arrivals (DACA) program. The verdict is a head-scratcher. After all, no statute or regulation compels DACA. It is simply an invention of the Obama administration on the grounds of “prosecutorial discretion.” Since President Obama exercised his discretion in creating DACA, why can’t President Trump use his own discretion to end it?
According to this Ninth Circuit panel, the problem is the Trump administration’s justification for ending it. Trump argued that DACA is illegal and therefore must be ended. The Ninth Circuit counters that DACA actually is legal, so ending it on grounds of illegality would be “arbitrary and capricious.” Notice the separation-of-powers issue here. If a court rules that the president is required by law to take a particular action, then he must do it or risk impeachment. But when it comes to discretionary actions, the president should never do something he believes exceeds his authority — even if a court has given him “permission” to do it. In this case, the Ninth Circuit has denied the president his right to independently assess the legality of a discretionary action.
But leave that aside. To this non-lawyer, what is most disturbing is the Court’s activist pose. Like an article from Reader’s Digest, Judge Kim McLane Wardlaw’s opinion begins with a heartstring-tugging anecdote. It’s worth quoting in full to demonstrate her bias:
It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions.
Is this a judicial ruling or a press release from United We Dream?
So intent is Judge Wardlaw to use emotional language that she slips into overly broad claims about DACA recipients. For example, she says they “unwittingly entered the United States” (15-year-olds do not leave their native countries without knowing it); they “have clean criminal records” (they can have up to two misdemeanor convictions, including felony charges that they plead down); they face deportation to “a country with which they have no ties” (again, they could be as old as 15 before leaving their native countries, and they were allowed to make brief return trips before receiving DACA); and they are “economically productive” (DACA has no work requirement). Ordinarily, one would not expect a judge to be so imprecise with her language and so open in her bias. But in 2018, it’s just another day on the Ninth Circuit.