Yesterday, Judge Roger Titus ruled that President Trump’s phaseout of the Obama-era DACA program is legal. Judge Titus is a senior federal district court judge for the district of Maryland. He’s one of the best district court judges I ever practiced before. However, it would take only a moderately able, fair-minded judge to rule as Judge Titus did in this case.
Judge Titus’ opinion is here. It takes a few shots at the bitterly divided state of our politics and, indeed, at President Trump. It also displays the fealty to the law and the judicial modesty that characterize his judging.
Judge Titus noted early on that the issue before him is not whether DACA is lawful. Rather, the issue is whether the Trump administration “made a reasoned decision to rescind DACA based on the Administrative Record.” “Any alternative inquiry,” he wrote, “would impermissibly require a court to “substitute its judgment for that of the agency.”
Judge Titus then ruled:
Given the fate of DAPA [the companion program to DACA that was held to be illegal], the legal advice provided by the Attorney General [that DACA is unlawful and would likely meet the same fate as DAPA in court], and the threat of imminent litigation, it was reasonable for DHS to have concluded — right or wrong — that DACA was unlawful and should be wound down in an orderly manner.
In finding Trump’s wind-down decision orderly, Judge Titus noted:
[The president’s decision] took control of a pell-mell situation and provided Congress — the branch of government charged with determining immigration policy — an opportunity to remedy it. Given the reasonable belief that DACA was unlawful, the decision to wind down DACA in an orderly manner was rational.
Judge Titus also found that “the Administrative Record — the basis from which the Court must make its judicial review — does not support the notion that [the president’s order] was targeting a subset of the immigrant population, and it does not support any supposition that the decision was derived on a racial animus.” He rejected the argument that Trump’s harsh comments about illegal immigrants, and others, provide a basis for invalidating a program as improperly motivated. He wrote:
Thoughtful and careful judicial review is not aided when the President lobs verbal hand grenades at the federal courts, the Department of Justice, and anyone else with whom he disagrees.
As disheartening or inappropriate as the president’s occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission. The DACA Rescission Memo is clear as to its purpose and reasoning, and its decision is rationally supported by the administrative record.
Judge Titus left no doubt that, from a public policy standpoint, he does not like the result he reached — the exposure to deportation of a huge number of immigrants who were brought here by their parents. But he was old-fashioned enough not to let his personal sympathies drive his judging:
This court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the president will finally get their job done.
Pointedly citing Judge Gonzalo Curiel, whom Trump once suggested wouldn’t be fair to him because of his national origin, Judge Titus added:
An overwhelming percentage of Americans support protections for ‘Dreamers,’ yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act.
Judge Titus’ decision runs counter to the rulings of two other district courts, one in California and one in New York. The California ruling brought with it a nationwide injunction that blocks the DACA phaseout. The Maryland ruling does not change this.
Its value resides, first, in the refreshing reaffirmation of the proper role of judges and, second, in its power to persuade higher-level courts. I believe Judge Titus’ opinion is persuasive, though I doubt that five Supreme Court judges need to be persuaded of his position.