On Tuesday, a U.S. District judge in San Francisco barred the Trump administration from ending Deferred Action for Childhood Arrivals (DACA), a program created in 2012 by former Homeland Security Secretary Janet Napolitano of the Obama Administration that prevents young people brought to the United States illegally by their parents from being deported.
U.S. District Judge William Alsup, who was appointed to his position by former President Bill Clinton, ruled in a lawsuit brought by Democratic state attorneys general, organizations and individuals after the Trump administration announced last September 5 it would rescind the program, ordering a six-month phaseout concluding March 5, 2018. The Trump administration stated it would stop considering new applications for legal status dated after September 5, but would allow DACA recipients with a permit set to expire before March 5, 2018 the opportunity to apply for a two-year renewal if they applied by October 5, 2017.
Alsup wrote, “The agency shall post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with this order.” Alsup’s ruling flew in the face of decisions from other federal judges, including the 5th U.S. Circuit Court of Appeals, which had ruled a program similar to DACA was illegal for at least two reasons: that program didn’t go through the notice-and-comment process and also was contrary to immigration law.
But Alsup ruled the DACA case was different and the reasons given by other courts did not apply.
Ironically, one of the plaintiffs in the lawsuit was Napolitano, who attacked the Trump Administration’s decision by insisting that the normal process of going through the full notice-and-comment period when creating a program like DACA, which she ignored when she created it, was ignored by the Trump Administration when they canceled DACA.
According to the Office of the Federal Register, agencies obtain their authority to issue regulations from laws (statutes) enacted by Congress. The Office adds, “An agency must not take action that goes beyond its statutory authority or violates the Constitution. Agencies must follow an open public process when they issue regulations … in general, agencies will specify a comment period ranging from 30 to 60 days in the 'Dates' section of the Federal Register document, but the time period can vary.”
Alsup ruled that DACA must not be rescinded until litigation on the issues is resolved, triggering Department of Justice spokesman Devin O’Malley to respond, “Today’s order doesn’t change the Department of Justice’s position on the facts … (the department) will continue to vigorously defend this position.” he said.
Alsup’s ruling permitted the federal government to refuse to process new applications from people who were not already covered by DACA, but people already covered could submit renewal applications which the federal government would have to process. He stated, “DACA gave them a more tolerable set of choices, including joining the mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and associated hardship.”
Wednesday morning, White House spokeswoman Sarah Sanders responded to the ruling, asserting that it was “outrageous,” and adding , “An issue of this magnitude must go through the normal legislative process. President Trump is committed to the rule of law, and will work with members of both parties to reach a permanent solution that corrects the unconstitutional actions taken by the last administration.”
President Trump responded on Twitter: