DACA Law Suits Likely to Fail, Except For Trumplaw

WASHINGTON - Sept. 6, 2017 - PRLog -- Faced with a threat by almost a dozen states to sue over the alleged unconstitutionality of DACA, Attorney General Jeff Sessions announced yesterday that the program was being rescinded, but it now appears that other states are now threatening to sue to block today's actions.

        Moreover, one such law suits has already been filed by a DACA participant.

        But the law suits attacking DACA's rescission are unlikely to be effective, says public interest law professor John Banzhaf, except for one strange looming factor - Trumplaw.

        President Barack Obama's action in unilaterally shielding some 800,000 youngsters in the country illegally from being forced to leave was widely seen as an unconstitutional usurpation by the President of power only Congress had to change existing law.  Indeed, Session's cited this alleged unconstitutionality as one reason for rescinding the program.

        So, regardless of whether DACA was in fact unconstitutional, it is hard to see how doing away with it, and allowing the law to simply return to what it had been for a long time prior to Obama's action, could be seriously challenged as unconstitutional or otherwise unlawful.

        Moreover, under ordinary circumstances, courts would be reluctant to rule upon the legality of a program which Congress may well change during the six-month window Sessions has provided, much less issue an injunction before any serious harm occurs, says Banzhaf, at least under ordinary circumstances.

        But these are not ordinary circumstances, he says, citing a newly recognized phenomena under which at least some judges seem willing to take any action deemed necessary to thwart what they may see as improper actions by the President, regardless of what existing law provides.

        Several scholars, including some who oppose him, suggested that courts appear to be adopting a new jurisprudence called "Trumplaw" aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.

        For example, a piece in the New York Times described this new method of deciding cases as "a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves."

        David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this "strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump."

        In his words, "when existing precedent either doesn't apply or cuts against the overriding demand to stop Trump, then it's up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the 'right' result'" - "an otherwise lawful order is unlawful only because Donald Trump issued it. . . .  All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump."

        Thus, while a president's power to issue pardons is almost always described as "unlimited," it is now being challenged regarding the unprecedented pardon of former Arizona sheriff Joe Arpaio.

        Although the President allegedly has unfettered power to completely pardon anyone, a judge has so far refused Arpaio's request that his conviction be thrown out based upon Trump's pardon.  Arpaio's lawyers argue that "The president's pardon moots the case, and it warrants an automatic vacatur of all opinions, judgments, and verdicts related to the criminal charge."

         But the judge, rather that accede to this request, has directed both Arpaio and the Justice Department to file briefs on the legal issue of whether she should grant his request.  This arguably flies in the face of a 1925 Supreme Court decision which unanimously upheld a presidential pardon for a criminal contempt of court sentence; exactly the unusual type of pardon involved here.

        Constitutional scholar Erwin Chemerinsky has suggested that one way the President's seemingly unfettered pardon power might be challenged would be for her to refuse to fully recognize it.

        Courts have refused to uphold Trump's Muslim ban order on grounds that many law professors, some of whom strongly oppose the order, nevertheless have suggested seem to be contrived: e.g., because of his prior statements allegedly evidencing racial bias.

        Another recent example of what could be called Trumplaw - bending the law to oppose Trump's actions - relates to his order regarding so-called sanctuary cities, suggests Banzhaf.

        Although the judge agreed with the government that the sanctuary cities executive order was on its face "toothless" since it neither required cities to honor ICE detainer requests nor to provide the government with information about people's immigration status, that it "did not change existing law" at all, "carries no legal force," and was "merely an exercise of the President's 'bully pulpit,'"  he nevertheless stayed it because it could possibly be interpreted so broadly as to unconstitutionally frighten many cities into providing the broad range of cooperation on immigration matters which Trump wants.

        In short, many judges, in addition to wanting to oppose much of what Trump does because they strongly object to him and his orders, may also be willing to bend and stretch the law - including venturing into uncharted waters such as his pardon power, or his power to fire prosecutors who do not comply with his priorities - because Trump has repeatedly attacked judges, by name as well as collectively.

http://banzhaf.net/ jbanzhaf3ATgmail.com  @profbanzhaf