Well, no surprise, Chief Cuck John Roberts expressed his hatred of President Trump with a series of decisions that show he is either legally illiterate, part of the Deep State, or easily intimidated. There was no basis for the recent decision on the Deferred Action For Childhood Arrivals (DACA). DACA was, as I have repeatedly written, a matter of prosecutorial discretion, which is not reviewable by any court. Even the parts of DACA that are not prosecutorial discretion, for example, the employment authorization, were declared illegal by a Federal District Court Judge, based on the failure of the Department of Homeland Security (DHS) to follow the Administrative Procedures Act (APA) of 1946, the same law that Roberts claimed President Trump had to follow to end the same program that did not follow the APA when created.
But the District Court Judge went further, and declared that the employment authorization part of DACA was itself illegal, as it usurped the authority of Congress to determine by legislation the granting of employment authorization and to determine which aliens were authorized to remain in the United States.
A Time For Heroes
However, the main responsibility for the failure on DACA lies with President Trump. Roberts relied not only on the mechanism of the APA; publication and comment on proposed regulations underlying Executive branch actions (for the record, DACA was not a regulation, but a policy of prosecutorial discretion in the enforcement of immigration laws) but also on the reasoning behind the repeal of DACA. Roberts claimed that President Trump had to take into account factors that were irrelevant to the APA and reached into the arena of policy preference.
Roberts made much about the impact of deporting the DACA illegal aliens, which is none of his concern. Deporting illegal aliens is the job of the President, and the impact on illegal aliens who get deported is of no import. Whether these aliens lose jobs or their employer loses employees is of no concern for the Chief Justice.
But it was the failures on President Trump’s part that allowed Roberts weasel room to attack the repeal of DACA root and branch. And it was the problem that President Trump has had since Day One: Personnel is Policy. From the start, saboteurs in his administration, whom he appointed and relied upon, were seeking to ruin his administration.
The first and most obvious failure was that President Trump instead of ending DACA on Day One as he promised, allowed the program to continue until September 2017, which undermined the legal reasoning that the Administration later relied upon, at least ostensibly, to end the program. One cannot with a straight face maintain that DACA was illegal and unconstitutional, then allow the program to continue for almost a year. And only one person, besides President Kushner, is responsible, and that is President Trump.
And there we have the underlying problem with the Trump Administration, Personnel is Policy, and President Trump is, again, responsible for all the saboteurs he appointed or acquiesced to, Jared Kushner being the most problematic. But it is not only President Kushner that is the problem. Sadly, Jeff Sessions was a major cause of the DACA debacle. The whole of the Administration’s legal argument revolved around the claim that DACA was illegal. This is true, but it challenged John Roberts in the area he was most comfortable in fighting.
When Attorney General Jeff Sessions appeared before news cameras at the Justice Department in early September 2017 to announce that President Trump was ending deportation protections for young undocumented immigrants, he knew the administration had left itself more legally vulnerable than it should have…
The president’s top lawyers, too, relied on Mr. Sessions’s strong belief that the program had “legal and constitutional defects” as they prepared to defend Mr. Trump’s actions against the court challenge they knew was coming.
But Mr. Sessions also understood that the legal argument was not the strongest possible rationale they could make in court, according to several people familiar with his thinking who spoke on the condition of anonymity to reveal private deliberations. If courts disagreed with him that DACA was unlawful, Mr. Sessions knew, the president would lose.
And that is just what happened. Judges have ruled that by citing only a flawed legal rationale for ending DACA — and no policy justifications — the administration’s decision was “arbitrary and capricious,” an illegal exercise of presidential power without any legitimate basis to end a program relied on by about 700,000 people.
[How the Trump Administration Eroded Its Own Legal Case on DACA, by Michael D. Shear, Julie Hirschfeld Davis and Adam Liptak, NYT, November 11, 2019]
This was an unforced error by Jeff Sessions and the Trump Administration.
Instead, President Trump should have just announced that the policy was ending based on a return to a policy of identifying, arresting, and deporting all illegal aliens. But what happened was that President Trump said publicly that he loved the so-called DREAMers and that they would not be deported even if the program ended. Now, part of this was obvious signaling to the Democrats that he wanted a deal on immigration that included amnesty for those illegal aliens, but the Democrats, Paul Ryan, and saboteurs in the Trump Administration did not push for a deal that included amnesty, reducing illegal immigration, and a border wall. But this angling for a deal, combined with Deep State sabotage, ended quickly and gave Roberts an opening to thwart President Trump.
However, the sabotage only gets worse. And again it was another high profile appointee of President Trump that directed the sabotage, the notorious Elaine Duke, another Obama holdover that John Kelly brought in.
At a contentious meeting in the White House Roosevelt Room several days earlier, Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump’s team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, the Obama-era program known as DACA that shields immigrants who were brought to the United States as children.
Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own, according to several people familiar with her concerns. And she did not want her name on what she saw as anti-immigrant policy rationales put forth by Mr. Sessions; Stephen Miller, the president’s powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.
She eventually relented under intense pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government’s case defending the termination of the program, which will be argued on Tuesday at the Supreme Court.
Ms. Duke’s bare-bones memo ending the program did not make the case that President Barack Obama had gotten the policy wrong — that DACA recipients were not deserving of protection or that allowing them to stay in the country would create problems that the government wanted to avoid. Instead, Ms. Duke, a career civil servant who volunteered with an immigrant aid group in her free time, relied solely on an assertion by Mr. Sessions that it was unlawful.
Again, the Trump Administration thought they were being too clever by half, just as in the failure on the Census case. Instead of being forthright, tell the Court and the public that the Citizenship Question was designed to help with immigration enforcement, they went with Sessions’s claim that it would help voting rights enforcement. Roberts saw through that and again stabbed President Trump in the back. Better to have been honest and trumped this enforcement mechanism to the public.
And even the NYT agrees with your humble correspondent, just be honest and let the deportations commence.
Had the administration simply declared that it was changing direction as a matter of policy, the rulings indicated, the termination of DACA would have been a routine exercise of executive discretion.
And guess who else was behind President Trump’s dithering on the issue, another backstabbing saboteur, Hope Hicks.
The day before making the announcement in 2017, the president huddled with Hope Hicks, a close aide at the time, and Mr. Miller in the small dining room off the Oval Office, hesitating about his decision and agonizing over what to say, according to people close to him. He wanted to appear tough to his voters, but he was anxious about being seen as mean to young people.
President Trump has the right instincts, but he is easily swayed to the dark side and that is his tragic flaw. Failure universally follows his second guessing his instincts to support the Historic American Nation. Only when conniving and playing games does he fail.
Now, what is to be done? A common question in history. Well, the 5th Circuit shows us the way. Let them determine, again, that DACA is illegal.
The Trump administration argued that the program was an unlawful exercise of authority by the executive branch, relying on a ruling from the United States Court of Appeals for the Fifth Circuit, in New Orleans, concerning a related program. The Supreme Court deadlocked, 4 to 4, in an appeal of that ruling. Judges in the DACA cases said the two programs differed in important ways, undermining the administration’s legal analysis.
Let Texas renew their lawsuit against DACA. The lawsuit was a dagger pointed at the heart of DACA and had already killed off the successor to DACA, the Deferred Action For Parents Of Americans (DAPA).
The Trump Administration is looking for another way to end the Obama-era Deferred Action for Childhood Arrivals program, and a pending case in Texas could be a catalyst for the next round of litigation, according to reports.
The case the Supreme Court heard, Department of Homeland Security v. Regents of the University of California, came out of the Ninth Circuit Court of Appeals. But in a separate DACA case, a federal judge in Texas on Thursday ordered both sides to file paperwork next month following the high court’s opinion, NBC reported.
Tom Goldstein, a Washington D.C. attorney and publisher of SCOTUSblog, told the network that the president’s tweet was little more than bluster, and the real threat to the DACA program could be the Texas lawsuit.
That lawsuit was filed in 2018 in the Southern District of Texas by Texas Attorney General Ken Paxton and nine other states eventually joined the case, claiming that former President Obama exceeded his authority when he unilaterally enacted DACA…
Paxton subsequently asked Hanen for a summary judgement on the case in 2019, but Hanen put the case on hold pending the Supreme Court’s decision. On Thursday, Hanen asked both sides to file reports “setting out their respective positions” by next month. Paxton, meanwhile announced that his office would proceed with the lawsuit.
“We are disappointed with today’s SCOTUS decision, but it does not resolve the underlying issue that President Obama’s original executive order exceeded his constitutional authority,” Paxton said in a written statement. “We look forward to continuing litigating that issue in our case now pending in the Southern District of Texas.”
[After Supreme Court Ruling, Texas DACA Case Could Offer Another Chance At Ending Program, by Julian Aguilar, Texas Tribune, June 19, 2020]
But the real solution to the DACA illegal amnesty requires the President to be presidential. Time to be Andrew Jackson. Announce to the public that every illegal alien who applied for DACA will be immediately placed in deportation proceedings. DHS has their addresses, all it needs to do is send them a Form I-862, Notice To Appear, in the mail, informing them that they have been found to be illegally in the United States and they have an appointment in the immigration courts. The best part would be the fine middle finger to John Roberts. Let him find out that DREAMer illegal aliens will be arrested and deported all because of him.