I am writing in response “Judicial overreach,” Mikie Kerr’s June 8 WHT Constitution Corner column. Her initial description of the sources of the Constitution’s unique separation of powers structure is instructive and welcome.
Beginning in the fourth paragraph, however, she takes a sudden swerve into polemic when she attacks John D. Bates’ “DACA Decision” in NAACP v. Trump (Case 1:17-cv-02325-JDB Document 70, filed April, 24, 2018). John Bates is a George W. Bush appointee to the Washington, D.C. Federal District Court.
Without explanation, Ms. Kerr alleges that the Obama policy of “Deferred Action for Childhood Arrivals” violates the Constitution and a provision of the Immigration and Nationality Act, concluding that:
“Shockingly, Bates ruled that President Trump is prohibited from repealing this DACA executive amnesty and furthermore ruled the president must continue this illegal amnesty in the future.”
The truth (if it still matters) is that Judge Bates did neither of those things, nor does DACA allow “amnesty” for anyone. Webster’s online dictionary defines “amnesty” as a “pardon granted to a large group of individuals.” DACA is, however, merely an executive decision that, as a matter of prosecutorial discretion, directs the Immigration and Naturalization Service to “defer action” on deportation of people who arrived in the United States as children. It specifically does not grant any rights to citizenship nor anything else that might be called “amnesty.”
DACA does, however, require its beneficiaries to identify themselves to qualify for deferred action and promises that the information the children provide will not be used against them. The deferrals are renewable every two years and allow the beneficiaries to qualify for work authorization, social security numbers, preauthorization to travel to the United States without a visa, and a limited class of public assistance, such as state and federal aid for medical emergencies. “Benefits like these” Judge Bates notes, “allowed DACA recipients to work, travel abroad, access credit, and otherwise lead productive lives during their periods of deferred action.” DACA was implemented in 2012, and to date about 800,000 people have qualified for its benefits.
Judge Bates notes that it has been repeatedly held to be a violation of the constitutional separation of powers for a court to review executive prosecutorial decisions in individual cases. That is not so in the case of a generalized executive policy that reverses a prior executive policy on which people have come to rely. Quoting from a 2016 U. S. Supreme Court case, Judge Bates concludes that:
“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. Thus, when an agency reverses a prior decision, it must provide a reasoned explanation for the change. That explanation need not be more detailed than what would suffice for a new policy created on a blank slate, but it must address the facts and circumstances that underlay or were engendered by the prior policy, including any serious reliance interests.”
The “reasoned explanation” for the DACA repeal is a one-page letter from Attorney General Jeff Sessions to the then acting director of the Department of Human Services and a five-page DHS “Rescission Memo” implementing the repeal. The Sessions letter asserts that DACA had been “effectuated by the previous administration through executive action, without proper statutory authority and … after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result,” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
Aside from an unexplained assertion that DACA was unconstitutional, the Rescission Memo deals mainly with the “orderly winding down” of the program wherein all DACA benefits would have begun to expire in March of 2018 and terminate within two years. After several pages of analysis, Judge Bates determines that neither the Sessions letter nor the DHS memo “cited to any statutory provision with which DACA was in conflict” and that the “Department’s explanation for its conclusion that DACA was unconstitutional was equally opaque.”
In light of its “bare bones” legal justification and the reliance interests of the 800,000 DACA beneficiaries, Judge Bates concluded:
“The Department’s failure to give an adequate explanation of its legal judgment was particularly egregious here in light of the reliance interests involved. … The Supreme Court has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here.”
Recognizing the significance of vacating Trump’s DACA repeal, Judge Bates gives the administration 90 days to better justify its decision before vacating it.
In short, Judge Bates has not yet precluded DACA’s repeal — as long as the Trump administration can properly justify it. Far from judicial overreach, this decision is a careful reading of the law that reins in arbitrary and capricious executive overreach.
David Case is a resident of Kailua-Kona.