Back in February, the Supreme Court bailed out on the DACA question, declining to hear an appeal to a ruling from a San Francisco judge who thought the President couldn’t end the program. Sadly, that decision has left the door open to additional mischief from the courts, and now one of the strangest rulings yet has been handed down. A federal judge in the District of Columbia has concluded that not only can’t the President fully terminate the program but that the White House has only three months to come up with a better justification for its actions or he will order the full DACA program to go back into effect. (NBC News)
A third federal judge on Tuesday ruled against the Trump administration’s campaign to end the Deferred Action for Childhood Arrivals program for undocumented immigrants, ordering the administration not only to continue processing applications but also to resume accepting new ones.
U.S. District Judge John Bates of the District of Columbia was withering in his 60-page ruling, calling the administration’s attempts to end the program, known as DACA, “arbitrary,” “capricious,” “virtually unexplained” and “unlawful.”
Bates stayed the ruling for 90 days to give the Department of Homeland Security time to come up with better arguments for scrapping the program. If it doesn’t, he wrote, he will enter an order reinstating DACA in its entirety.
This bizarre interpretation of executive branch powers didn’t even bubble up from the Ninth Circuit. John Bates was a Bush appointee, making this decision all the more strange. And it still fails to answer many of the underlying questions some of us have had since President Trump first decided to terminate DACA in its current form.
At the heart of the matter, since when does a program instituted by an executive order take on the same level of durability as a federal law? DACA was never crafted into law by Congress, and the way things have been going lately it looks like it probably never will be. It’s a program which was summoned into existence by a previous president with the stroke of a pen. How does this judge justify saying that a later president can’t modify or terminate it?
Taking that one step further, the judge here has set a dangerous precedent which Democrats should be cautious about celebrating. Does this mean that all of Donald Trump’s executive orders are now written in stone? What if a Democratic president comes along and tries to roll back Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs? That’s the one which states that two regulations must be repealed for every new one put on the books. If the next Democratic administration begins issuing new regulations with no existing ones being removed, does this mean that we can just find a sympathetic judge to declare that the program has already been running for years and any new regulations are under an injunction until a suitable number of existing ones are erased?
The Supreme Court needs to get off their collective butts and take another crack at this. If they want to uphold these rulings they are going to be fundamentally changing the nature of presidential power and executive orders. There’s certainly a case to be made in favor of that idea since so many such actions have the force of law without any input from legislators. But if so, it must be applied across the board to all future presidents, not just Donald Trump.