Judge Gives Trump 90 Days to Kill DACA

By George Khoury, Esq. on April 27, 2018 | Last updated on March 21, 2019

The federal district court in Washington D.C. issued a lengthy opinion which may end up being in favor of the NAACP and public interest groups' that filed a lawsuit against President Trump over the rescinding of the Deferred Action for Childhood Arrivals. The court relied heavily on the other three federal court opinions on the issue, and deferred reaching their own conclusions, particularly as the other federal cases are presently being appealed, and SCOTUS has already ruled that it will not take the matters up before the appellate courts rule.

The court's opinion, delivered by Judge John Bates, a George W. Bush appointee, held that the administration's rescission of DACA was arbitrary and capricious, and thus unlawful. Judge Bates set aside the rescission, but stayed his order for 90 days to provide the Trump administration some time to come up with some valid, lawful, rationale. If the DACA rescission isn't fixed in 90 days, DHS will be required to fully restore the program.

The court based the ruling on the fact that the Department of Homeland Security did not explain the basis of its legal judgment, except perhaps to the extent it claimed DACA posed a risk of litigation. Judge Bates found that the risk of litigation was insufficient to justify the rescission, particularly coupled with the just how arbitrary and capricious the rescission was, by all objective measures. The court painstakingly explained that agency officials, and the executive administration, cannot escape the checks and balances of the government, and sidestep both political accountability and the courts.

Interestingly though, the court's stay of enforcement gives President Trump a last ditch effort to fix the unlawful DACA rescission. The court explicitly suggests that the administration might "alter DACA's rescission in ways that might affect the merits of plaintiffs' constitutional claims." Judge Bates specifically suggests providing each DACA recipient with some procedural due process rights by establishing a procedure to contest the revocation of their DACA benefits.

While no one seems to have suggested it, based on the 90 day stay and his explicit suggestion on getting around his own ruling, Bates may be fishing for a higher appointment.

Read the full opinion below:

DC Circuit Trump DACA by FindLaw on Scribd

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