FILE – In this Sept. 1, 2017, file photo, Undocumented students join a rally in support of the Deferred Action for Childhood Arrivals, or DACA program, outside the Edward Roybal Federal Building in downtown Los Angeles. A program that temporarily shields hundreds of thousands of young people from deportation was scheduled to end Monday, March 5, 2018, but court orders have forced the Trump administration to keep issuing renewals, easing the sense of urgency. (AP Photo/Damian Dovarganes, File)

On Friday, a three judge panel of the US Fourth Circuit of Appeals in a 2-1 decision (Obama+Clinton judges, vs Trump judge for the benefit of Chief Justice John Roberts) sorta upheld a Maryland Circuit Court decision forbidding the Trump Administration from rescinding the Deferreed Action on Childhood Arrivals (DACA) program. This is now the second federal circuit, the other being the Ninth, that have ruled against the administration and the third DACA case before the Supreme Court–the administration has requested that SCOTUS review a district court case from Second Circuit on an expedited basis.

To understand why these decisions have simply been lawfare waged against an administration loathed by some members or the judiciary or just #OrangeManBad payback you have to understand the genesis.

DACA is rooted in a memo written by Obama’s Homeland Security Secretary Janet Napolitano saying that because of a lack of resources it is her directive that illegals who came to the US as children (this is defined as under 18 so the key MS-13 constituency of the Democrat party is covered) not be processed for deportation. That’s it. It was never subjected the rule-making process under the Administrative Procedures Act, it never received public comment. After the companion directive, Deferred Action on Parents of Americans (and by Parents it actually meant any illegal with a tangential relationship to a DACA enrollee), was ruled illegal by the Fifth Circuit, Jeff Sessions left his pudding for a few moments and informed acting Homeland Security Secretary Elaine Duke that DACA, based on that decision, was illegal as well and ordered her to rescind the memo.

David French, in a rare moment of lucidity, actually took the court to task rather than blaming conservatives for being meany-pants:

The court’s reasoning is flawed on its face. It ruled that a discretionary Obama policy implemented without regard to the Administrative Procedure Act (APA) could not be repealed without applying APA scrutiny. In other words, the APA didn’t apply to Obama’s action, but it does apply to Trump’s. Moreover, it ruled that the Trump administration’s stated concerns about the legality of the DACA program were “arbitrary and capricious” and therefore couldn’t justify the rescission decision. Put simply, this means that progressive judges are retroactively granting Obama the discretion to implement DACA, but imposing unilateral limits on Trump’s ability to end DACA. In essence, these judges are making the nonsensical determination that Obama had the prosecutorial discretion to begin the DACA program, but Trump does not have the prosecutorial discretion to end it. By contrast, this is how Judge Julius Richardson, a Trump appointee, accurately described the law in a polite but pointed dissent: Enforcement discretion lies at the heart of executive power. The Executive may decide to prosecute, or not prosecute, an individual or a group so long as the reasons for that decision are constitutionally sound and the decision does not violate or abdicate the Executive’s statutory duties. As a consequence, Richardson argued, Trump’s decision to rescind DACA is “judicially unreviewable under the Administrative Procedure Act.” “To hold otherwise,” he wrote, “permits the Judicial Branch to invade the province of the Executive and impair the carefully constructed separation of powers laid out in our Constitution.”

It, like the other decision in the Ninth, also locks in the ability of a previous administration to bind the actions of its successor simply by writing memoranda.

Where the Ninth Circuit decision followed a “equal protection” and “arbitrary and capricious” reasoning, the Fourth Circuit’s reasoning is much more likely to result in a reversal at the Supreme Court.

Here is HotAir colleague Gabe Malor’s take:

Dissenting Judge Richardson argues that DACA was justified as an act in prosecutorial discretion, and so rescission of DACA can be justified as an act of discretion. pic.twitter.com/zh35J91ILt — Gabriel Malor (@gabrielmalor) May 17, 2019

Additionally, the maj. op. vacates the injunction in this case, which was based only on the information sharing/equitable estoppel claim. (There are DACA injunctions in other jurisdictions, however.) — Gabriel Malor (@gabrielmalor) May 17, 2019

And this from Jonathan Adler of Case Western Reserve Law School and Reason.com:

CA4 unanimously (and correctly) rejects claim that DACA rescission required notice & comment. Splits 2-1 on more difficult question of whether DACA rescision reviewable under APA 706.https://t.co/wxPWP6cjDQ — Jonathan H. Adler (@jadler1969) May 17, 2019

If DACA was lawful as an exercise of prosecutorial discretion, as Obama Administration argued, there is strong argument rescission is unreviewable and cannot be invalidated as "arbitrary & capricious" under the APA (and I suspect SCOTUS will agree with this argument). — Jonathan H. Adler (@jadler1969) May 17, 2019

Actually, the Fourth Circuit victory is very tenuous. It holds that a discretionary judgment by the Executive Branch is subject to legal review. It says that the Attorney General’s decision to rescind a memo based on another Circuit Court ruling a similar program unconstitutional is “arbitrary and capricious.” And is says the feds are free to use any information provided by DACA enrollees to find and deport them.

Ultimately, these challenges are going to fail one way or another. There is no way the current court permits discretionary actions to be reviewed. The likelihood of the “equal protection” challenge surviving, based on other immigration decisions, is close to nil.

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