The anti-Trump Resistance is alive and well, and arguably, no faction of the movement is more important than the judges who pervert the law in order to thwart President Donald Trump’s agenda.
Just days after Trump rolled out a merit-based immigration plan that would fundamentally restructure how America deals with immigration, a three-judge panel of the Fourth Circuit Court of Appeals issued a ruling last Friday that again blocked Trump’s decision to rescind Barack Obama’s unlawful DACA (Deferred Action for Childhood Arrivals) program.
The Fourth Circuit’s was the latest in a series of rulings to block Trump’s repeal of DACA, and it was just as unconstitutional as previous rulings by the Ninth Circuit and several federal district judges who issued nationwide injunctions against repeal.
Two Fourth Circuit judges concluded that Trump’s move to repeal DACA was unlawful because it was not “adequately explained,” and that the president’s decision was “arbitrary and capricious.”
The court agreed with the Trump administration that this was an agency decision, which was therefore not subject to the requirement for a public comment period. On the other hand, argued the court, the supposed failure to fully explain the decision — in light of the fact that it would affect hundreds of thousands of noncitizens granted protections under DACA — made it unlawful.
The “logic” exerted by this court would impress Lewis Carroll for its complete detachment from reality. Consider the following:
Prior to rolling out the program, Obama stated repeatedly that he had no power to unilaterally grant amnesty. In 2011, when asked about a possible executive order fast-tracking citizenship for illegals, he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed. … The executive branch’s job is to enforce and implement those laws.”
Later in 2011, he reiterated that point, stating, “Believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”
Yet fast-forward a few years and that is exactly what he did, in defiance of the Constitution.
But that was always BO’s m.o. — defy the Constitution by enacting unlawful policies and programs, and then let them take root as it takes years to work its way through the courts. Even if the Supreme Court eventually struck him down, he was still able to gain enormous political benefit in the meantime.
In the case of DACA, the reasoning is blatantly and undeniably flawed. Obama himself openly admitted that DACA is unconstitutional, and the Fourth Circuit itself concedes the Trump administration’s position that no public comment period is required before changing the policy. Furthermore, the Fourth Circuit panel never even addressed the constitutionality of the DACA program before blocking its repeal.
Judge Julius Richardson, in a separate opinion, correctly argued that the Trump administration has the authority to “decide to prosecute, or not prosecute, an individual or a group” as long as the Constitution permits it and doesn’t extend beyond officials’ duties under federal law.
Judge Richardson further noted, “The plaintiffs may have serious concerns about our nation’s immigration laws and the Department’s policy of enforcing those laws. But an understandable policy concern is not a legally cognizable right. The rescission of DACA simply does not generate a due process claim.”
National Review’s David French (no fan of Trump) sums it up nicely:
The court’s reasoning is flawed on its face. It ruled that a discretionary Obama policy implemented without regard to the Administrative Procedure Act (APA) could not be repealed without applying APA scrutiny. In other words, the APA didn’t apply to Obama’s action, but it does apply to Trump’s. Moreover, it ruled that the Trump administration’s stated concerns about the legality of the DACA program were “arbitrary and capricious” and therefore couldn’t justify the rescission decision.
Put simply, this means that progressive judges are retroactively granting Obama the discretion to implement DACA, but imposing unilateral limits on Trump’s ability to end DACA. In essence, these judges are making the nonsensical determination that Obama had the prosecutorial discretion to begin the DACA program, but Trump does not have the prosecutorial discretion to end it.
The lower courts are certainly aware that the Constitution is unquestionably on the side of Trump in this matter, but that isn’t really the point, is it?
By issuing these repeated injunctions, the lower courts are able to extend DACA for several years. They’re hoping to run out the clock, betting on a Trump reelection defeat in 2020 — and that voters will replace him with an open borders Democrat who will continue and expand executive amnesty.
These types of blatant, brazen, unlawful acts by an activist, progressive judiciary underscore the critical importance of the Republican-controlled Senate’s ongoing efforts to confirm Trump’s conservative, originalist judges to the federal bench; judges who will leave their partisan politics and ideological preferences out of their decision making, and rule based on the law.