Originally Published in The Washington Post.
Larry Neumeister | AP
NEW YORK — Both sides in the dispute over a program sparing many young immigrants from deportation appear to be purposefully dragging out their legal fight, federal appeals judges said Friday.
The observations came as a three-judge panel of the 2nd U.S. Circuit Court of Appeals heard arguments in New York.
Circuit Judge Dennis Jacobs smiled as he noted that the panel’s eventual ruling would be “preliminary and duplicative” since it pertains to a temporary ruling by a Brooklyn federal judge that came before evidence is fully gathered and analyzed and while similar cases proceed elsewhere.
The U.S. government is appealing Judge Nicholas G. Garaufis’ finding last February that President Donald Trump’s administration failed to offer legally adequate reasons to end the Deferred Action for Childhood Arrivals program.
Then-Attorney General Jeff Sessions had said President Barack Obama’s 2012 decision to implement DACA was an unconstitutional exercise of authority. Often called “dreamers,” for never-passed proposals in Congress called the DREAM Act, participants in the program were brought to the U.S. illegally as children or came with families who overstayed visas.
The ruling by Garaufis came in lawsuits brought by immigration rights groups and 16 states and the District of Columbia. Ruling in similar fashion to a San Francisco judge, Garaufis concluded the Trump administration relied on an “erroneous” belief the program was unconstitutional.
Jacobs noted that a speedy resolution in the courts to the DACA dilemma was unlikely.
He told Anisha Dasgupta, a New York state lawyer who argued that Garaufis’ ruling should be upheld, that the legal strategy by DACA supporters guaranteed they would get a nationwide injunction.
“You have to concede that if you start 10 lawsuits and any single judge can have a nationwide injunction, it’s like buying up all the raffle tickets. You’re going to win,” he said.
Jacobs said that with over 100,000 potential plaintiffs, “judge shopping becomes very easy.”
“The states have adequately demonstrated the need for this,” Dasgupta said, addressing the need for an order that applies nationally.
Circuit Judge Robert D. Sack confronted a lawyer for the U.S. Justice Department over its decision to continue the court fight rather than address the legal flaws in how the program was cancelled and cancel it anew.
Sack said he found it “puzzling you’ve been litigating here and all over the country.”
Attorney Mark Stern, representing the Justice Department, said the U.S. continued litigating the issue because of the principles at stake.
“The basis of the district court’s injunction is flat out wrong,” he said.
Circuit Judge Denny Chin disagreed.
“The government would be in a different position if it had given a different explanation or justification for rescinding,” Chin said. “But it gave a reason that, frankly, I don’t think makes sense. And so that’s why we’re in this situation right now.”