Defer this

Yesterday Judge William Alsup entered an order preliminarily enjoining the Department of Homeland Security against enforcing the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program implemented by the Obama administration. Judge Alsup is a Clinton appointee to the United States District Court for the Northern District of California. It seems to me that Judge Alsup’s order is of a piece with the other lower federal courts that have sought to take their place among the “resistance” to the Trump administration. Politico’s Josh Gerstein reports on the order here. Politico has posted Judge Alsup’s 45-page order here.

Judge Alsup has entered his ordered in five consolidated cases. The many plaintiffs in the five consolidated cases are led by the University of California and its president (and former Secretary of Homeland Security under President Obama), Janet Napolitano. Minnesota is one of the four states bringing claims in the cases before Judge Alsup; the others are California, Maine, and Maryland. The states “allege that they are home to more than 238,000 DACA recipients, and that the loss of their residents’ DACA status and work authorizations will injure their public colleges and universities, upset the States’ workforces, disrupt the States’ statutory and regulatory interests, cause harm to hundreds of thousands of their residents, damage their economies, and hurt companies based in Plaintiff States.”

I note Judge Alsup’s determination of Minnesota’s lack of standing to bring its claim against the rescission of DACA. Minnesota had argued along with California and Maryland that it suffered injury to its public universities “through harm to their educational missions and the loss of students and teachers. According to the declarations filed by plaintiffs, the rescission, and the resulting loss of work authorization and potential for deportation, will adversely impact the diversity of the talent pool of potential students, which will make it more difficult for the universities to fulfill their missions of increasing diversity [sic][.]”

Judge Alsup ultimately finds Maine’s and Minnesota’s interests “so marginally related” to the purposes of the Immigration and Naturalization Act that “it cannot reasonably be assumed that Congress intended to permit” their claims. He accordingly dismissed Maine and Minnesota’s claims under the Administrative Procedure Act with leave to take another whack at coming up with something better in the next few weeks. Good grief.

Judge Alsup’s order comes early in the case, in the form of an order denying the government’s motion to dismiss the case for lack of jurisdiction. “All [parties] agree that a new administration is entitled to replace old policies with new policies so long as they comply with the law,” Judge Alsup generously concedes. Yet he notes that one question raised in the various lawsuits consolidated before him is “whether the new administration terminated DACA based on a mistake of law rather than in compliance with the law.” Judge Alsup emphasizes that “the new administration didn’t terminate DACA on policy grounds. It terminated DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and constitutional authority.” He holds that “pithy conclusion” a mistake of law and enters a preliminary injunction against DHS after weighing the prescribed factors necessary to support an injunction.

As I recall, an order entering an injunction is immediately appealable. The losing party need not await the conclusion of the case before they have the right of appeal, as is otherwise the case. In any event, however, Judge Alsup has certified his ruling for interlocutory appeal under the federal statute that accords him the discretion to do so. That also gives the government the right to immediate appeal of the order.

Josh Gerstein considers the political implications of the order’s timing. I was blissfully unaware of this lawsuit until last night. I have no opinion on the merits. I simply have a rooting interest in assuring the full legal authority of the executive branch to enforce immigration law duly enacted by Congress.

UPDATE: Josh Blackman condemns Judge Alsup’s handiwork in this excellent NRO column.

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