Posted on 01/23/2018 7:35:40 AM PST by markomalley
They’ll find a way not to rule completely as they always do. All the institutions of the country are in shambles
DACA was instituted before DAPA, but you are correct; they have the same philosophy and justification. DACA was challenged in Johnson v. Crane, but in that case the 5th Circuit held Mississippi did not establish standing, so the constitutionality of DACA was never ruled on its merits.
The challenge to DAPA also went as far as the 5th Circuit, but was found unconstitutional in U. S. v. Texas. That decision is still law as SCOTUS was tied 4-4.
I rarely say a case like this is a slam-dunk at SCOTUS but this one should be. The whole basis of the 0bama regime justification of DAPA in U. S. v. Texas was that DAPA was an exercise of prosecutorial discretion. It was an executive decision to defer prosecution under certain guidelines. The reason that the regime had to posture the argument in that way is that if the DAPA policy created a class of persons lawfully present in the United States, the government loses. Everyone conceded the executive does not have authority to create a class of persons lawfully present. Only Congress can do that.
The flip side of that coin, as we see in this case, is that prosecutorial discretion does not create any substantive or procedural right on the person who benefits from it. The executive has full authority to grant it and the decision is not reviewable by a court. But then again, so is the decision to take it away. Another aspect of prosecutorial discretion is that it does not have to go through the notice and comment procedure for executive rulemaking. DAPA and DACA did not go through that administrative process when they were created.
In the present case, the District Court recognized a procedural right of due process before the rule is rescinded, and also found the Trump administration did not go through the notice and comment procedure. That may win the battle, but it loses the war. Once the plaintiffs argue that there is a due process right and a notice and comment requirement, they have admitted that the DACA policy is Executive rule-making, and creates a class of persons lawfully present.
That, everyone concedes, the Executive cannot do. Therefore, DACA is doomed based on the posture the plaintiffs have taken.
The DACA authorizations automatically expire after two years and they have to resubmit for renewal - no way this “judge” can force Trump to renew permits to break our laws....
Yes. Good news for us.
LOL!
Maybe it's time to convince Ruth Buzzi Ginsberg to retire? Surely there's some available blackmail material on her.
I wish I was joking.
Are you in any psychological condition to accept any wins, or do you live for disappointment and loss?
And DEPORT again!!!!
This is outstanding news, SCOTUS acted fast after the request from the Justice Dept. I believe SCOTUS will shoot down the 9th Circus again.
Article regarding request:
Trump asks Supreme Court to overturn DACA program
http://www.freerepublic.com/focus/f-news/3623000/posts
Means that circuit court cuck judge is going to get slapped down hard.
“In the present case, the District Court recognized a procedural right of due process before the rule is rescinded, and also found the Trump administration did not go through the notice and comment procedure.”
I suppose that’s a good point, although what sort of notice and comment procedure did Obama entertain prior to the EO?
Trump did not simply pull the plug, there was ample time given for congress to remedy the situation and there’s been plenty of ‘comment’ in both houses. In addition, seems like due process is built in since each approved application is only for a two year period. If I understand correctly, ending the program simply meant these applications would no longer be accepted for renewal. As the name implies it’s only Deferred.
Roberts’ daughter Josephine is now 17. His son John is 16. He can still be blackmailed.
“we allowed many Japanese to move to Hawaii to make up for our response by defeating them in world war 2.”
Absolute nonsense,most of the Japanese were there prior to WWII.
.
Neither DAPA or DACA went through notice and comment. Had he done so, it would have been argued that the programs were agency actions pursuant to Congressional authority to create a class of aliens lawfully present. He clearly did not have that power. Prosecutorial discretion does not require notice and comment. But then again, neither does it’s reversal.
It’s all analysis from Youngstown Sheet & Tube v. Sawyer; the Executive gets the most judicial support where he is clearly carrying out the will of Congress, the least when he acts against it, and in the gray area where Congress is silent he can act but only if he has independent Article 2 authority. Article 1 vests all immigration authority in Congress, so there is no Constitutional “gray area” here. Congress did authorize prosecutorial discretion in 8 U.S.C. 1252, and the whole point of DACA was to argue that specific authority. There were a number of reasons why the 5th Circuit said DAPA wasn’t in Texas v. U. S. but I don’t need to go into that here. Or I could if you want.
So DACA is either valid as prosecutorial discretion or invalid as an unauthorized agency rule. The plaintiffs can’t have it both ways.
“Lower court activism doesn’t stop until the HoR starts impeaching.”
OBVIOUSLY not going to happen, at least until the Republicans reach 290 votes...which will not happen. So thinking of Plan B.
Like it or not, the founders messed up here - they left judges with the option of turning the country into a dictatorship. 45 years ago the Dems figured this out, and until we can change the Constitution, we are at their mercy.
It makes no sense. The initial EO was likely unconstitutional, so ending something that didn’t used to exist via EO can’t be.
Until Congress makes a law there’s nothing to review.
“So DACA is either valid as prosecutorial discretion......”
Is there precedent for such a thing? Obviously it may be applied to individual cases, but to a criminal class of nearly 1 million?
“Congress did authorize prosecutorial discretion in 8 U.S.C. 1252, ..”
I’m not finding it. That seems to be on “Judicial review of a final order of removal”.
Trump is smart enough to let the court throw out DACA and not give the RATS any fuel for the fall election.
Their machine runs Hawaii. So if you want a government job there it helps to be Japanese, competency not a factor. Family and connections is.
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