In a decision last week, Brooklyn District Court Judge Nicholas Garaufis, a  moderately conservative Democrat turned social-justice warrior, enjoined the Trump administration from phasing out President Obama’s Deferred Action for Childhood Arrivals (DACA) program. Garaufis’s action follows a similar order issued last month by a California judge. While both injunctions are “preliminary,” one of the requirements for granting such a temporary stay is a finding that the plaintiffs seeking it are likely to prove their case for a permanent bar, and both judges have made no secret of their sympathies in this regard. The injunctions will almost certainly be made permanent unless appellate courts intervene.

Judge Garaufis’s opinion, and his related decision in November denying the government’s motion to dismiss the case, represent a classic of Alice-in-Wonderland progressive jurisprudence: 103 pages evading, denying, or explaining away the almost self-evident proposition that a policy instituted by presidential fiat, without either legislation or formal administrative rulemaking, can be rescinded in the same fashion. The crux of the judge’s rulings is that Obama’s unilateral implementation of DACA was not subject to the Administrative Procedure Act (APA), which governs creation of such legislative-like rules by the executive branch—but that President Trump’s elimination of DACA violated the same Act.

The Obama administration announced DACA in June 2012 in the form of a memo from then Homeland Security secretary Janet Napolitano. It authorized immigration authorities to “exercise prosecutorial discretion,” purportedly on a “case by case basis,” and not to deport illegal aliens who were younger than 31; had entered the U.S. before they were 16; had been in the country since 2007; were attending school, had graduated high school or received a G.E.D., or had been honorably discharged from the military; had not been convicted of felonies or of “significant” or “multiple” misdemeanors, and would not “otherwise pose a threat to national security or public safety”; and had passed an unspecified background check. Applicants meeting these criteria were not only granted “deferred action” on deportation for two-year renewable periods, but were also allowed to apply for work authorization. The memo expressly stated that it conferred no “immigration status or pathway to citizenship.” Approximately 800,000 “undocumented immigrants” applied and qualified under DACA.

In 2014, the Obama administration dropped the other shoe on this relatively modest program for the so-called “dreamers” who had been brought here as children: it proposed, in the so-called DAPA program (Deferred Action for Parents of Americans and Lawful Permanent Residents), to extend amnesty to those who had entered illegally as adults and had children here. The DAPA plan also would have expanded DACA, most notably by eliminating the age limit of 30 for new applicants. Texas and 25 other states brought suit to block DAPA and the DACA expansion, and federal district and appeals courts struck them down as violating the APA and immigration law. The Supreme Court let these decisions stand in a 4-4 vote following Justice Antonin Scalia’s death in 2016.

After Trump took office, Texas and ten of the other states that had brought the DAPA litigation announced their intention to challenge DACA as well unless the new administration ended the program. Last September, Attorney General Jeff Sessions and Acting Homeland Security Secretary Elaine Duke announced a gradual wind-down of the program, based on Sessions’s legal opinion that it suffered from “the same legal and constitutional defects that the courts recognized as to DAPA.” Under the phase-out, while no new DACA applications were accepted after September 5, those already in the pipeline were still acted upon, and persons already covered whose two-year “deferred-action” periods expired up until March 5, 2018 were given time to apply for one more two-year renewal. Thus, no one’s DACA coverage would end for at least six months—until March 6, 2018—and some would remain protected by the program until March 2020. Trump urged Congress to enact a legally valid replacement for DACA in the six months before coverage began to lapse.

Some might view this six-month-to-two-and-a half-year wind-down period as lenient, but not Judge Garaufis. In an extraordinary courtroom outburst soon after the case challenging it was assigned to him, he blasted the October 5, 2017 deadline for filing pro forma renewal applications as “heartless” and “unacceptable to me as a human being and as an American.” (In 2013, the Second Circuit Court of Appeals, responding to similarly prejudicial statements, removed Garaufis from presiding over part of a case in which he imposed racial quotas on the New York City Fire Department.)

The judge’s ruling for the plaintiffs is therefore no surprise. In it, he acknowledges that the administration “indisputably can end the DACA program” and that “Administrations may . . . alter or abandon their predecessors’ policies.” But he nonetheless blocks the administration’s action because it ostensibly did not give the proper reason for doing so under the APA—seizing on Attorney General Sessions’s trivial misstatement that DACA was subject to “the same legal and constitutional” vulnerabilities that the “courts recognized as to DAPA” (emphasis added), when in fact the DAPA case did not address constitutional issues. Garaufis also disputes the attorney general’s conclusion that DACA was legally vulnerable under the APA (as the courts had found of DAPA), holding that it was “a general statement of policy” rather than an administrative rule subject to the APA—even while finding that its phase-out was subject to the APA. Finally, he disingenuously calls the administration’s moderation in winding down the program “internally contradictory” with “their stated rationale . . . that DACA was unconstitutional.”

The Garaufis decision is a prime example of the “judicial resistance” to the Trump presidency in which different standards of judicial review are applied to him than to any other president. This is a dangerous game which, progressives should realize, can be played by both sides. Liberal judicial overreach threatens to provoke a constitutional crisis and, ironically, ultimately undermines the legitimacy, not of the president, but of the judiciary itself.

Photo by Spencer Platt/Getty Images


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