Published: Wed, May 16, 2018
Global News | By Blake Casey

Judges skeptical they can't review Trump policy

Judges skeptical they can't review Trump policy

U.S. Attorney General Jeff Sessions said the program was unlawful when he announced the end of DACA, a position the appeals court judges asked attorneys for the government to explain on Tuesday.

California Attorney General Xavier Becerra's legal team argued that the January decision by Judge Alsup of the District Court for the Northern District of California, which keeps DACA in place for current recipients through a nationwide preliminary injunction, was correct and should stand. The 9th Circuit blocked several versions of the President's travel ban and is considered a more liberal court.

All three judges were nominated by Democratic presidents.

Michael Mongan, the deputy solicitor general of California said the administration hadn't shown "its homework" and it was necessary to do so before terminating the program.

In court papers, Mooppan also argued the DACA move applies equally to persons of all ethnicities, although like most immigration policies, has a certain disproportionate impact on Latinos from Central and South America.

The 9th Circuit panel's eventual ruling is unlikely to have any immediate, practical effect on the DACA program and its hundreds of thousands of recipients. Those cases run through different appellate circuits and would not be directly affected by the 9th Circuit's decision.

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However, in February, the Supreme Court rejected the administration's bid to get the justices to intervene in the controversy. Last year, the court, which then had only eight justices, deadlocked in deciding the fate of a similar program. DACA has protected some 700,000 people who were brought to the U.S. illegally as children or came with families that overstayed visas. Texas and six other states in recent weeks sued to end the original program, and the case is before the same federal judge.

The dispute has already gone to the Supreme Court once. Napolitano, who was secretary of the Department of Homeland Security from 2009 to 2013, helped create the DACA program in 2012. "What we would do in that circumstance is something we're still figuring out". "It's a question of an agency saying, 'We're not going to have a policy that might well be illegal,"' Mooppan told the judges. The decision by Trump to end DACA prompted lawsuits across the nation, including one by the state of California. Officials have said they thought it better to gradually bring the program to an end, rather than wait for a court to stop it abruptly.

At issue is not the legality of the program, but how the government chose to wind it down.

Judge John B. Owens hinted that he might be amenable to the argument, asking what the panel might do if it were to consider the states' other argument a "loser" but agree that winding down DACA violated recipients' due-process rights.

After the ruling, a furious President Donald Trump tweeted: "It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and nearly always wins before being reversed by higher courts".

"I have found that to be the argument that's the toughest to understand, because that was the whole point of this, that these were prosecutorial discretion decisions", Fresco said.

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