Originally Published in Politico
Josh Gerstein - August 13, 2020
A Department of Homeland Security official stated in June that the ruling “has no basis in law.”
A federal judge reprimanded the Trump administration Thursday over an unusual statement a Department of Homeland Security official issued in June declaring that the Supreme Court’s recent decision on the so-called DACA program “has no basis in law.”
During a hearing Thursday on lawsuits seeking to preserve the program, U.S. District Court Judge Nicholas Garaufis said he was taken aback by the defiant tone of the response U.S. Citizenship and Immigration Services Deputy Director for Policy Joseph Edlow released after the high court issued its unexpected, 5-4 decision rejecting the Trump administration’s bid to phase out the Obama-era Deferred Action for Childhood Arrivals program.
Garaufis said the language was uncalled for and disturbing, coming from an executive branch official, and he asked Justice Department attorney Stephen Pezzi to explain.
Pezzi, referring to the ruling by the title of the lead case brought by the University of California Regents, emphasized that — Edlow’s statement notwithstanding — the government is committed to abiding by the court’s decision.
“Obviously, the Regents decision is the law. The government is complying with the Regents decision and will continue to comply with the Regents decision,” the DOJ lawyer said.
Garaufis, an appointee of President Bill Clinton, pressed on by urging Attorney General William Barr to rein in the current head of DHS, acting secretary Chad Wolf.
“The attorney general should advise his client Mr. Wolf that it is not [a] benefit to anyone to have a federal agency take issue with a decision of the Supreme Court,” the judge declared. “I’m very troubled by anyone who would write such a thing on a document issued by a federal agency regarding a decision by the U.S. Supreme Court or any court, until it is overruled or reversed, any federal court.”
A clearly irritated Garaufis indicated he believed the statement could breed contempt for the legal system.
It’s not the first time the Brooklyn, N.Y.-based jurist has decided not to mince words as he criticized the administration’s handling of DACA.
In October 2017, Garaufis called Trump’s attempt to end the program “heartless” and “unacceptable.” Later that month, then-attorney general Jeff Sessions delivered a speech in Washington where he singled out the New York judge, accusing him of abandoning his role as an arbiter of law.
“A judge’s comments on policy like this is offensive, and it’s disrespectful of the legislative and executive branches and to the fine attorneys in the Department of Justice,” Sessions said. “The Constitution gives judges no right to veto a president's actions because they disagree on policy grounds."
Immigration rights advocates say the administration is indeed defying the high court’s decision by refusing to process new applications for DACA as it was before the phase-out was announced in September 2017.
Justice Department lawyers insist that policy is consistent with the Supreme Court’s ruling, which did not bar future changes to DACA, but said the wind-down initiated in 2017 did not properly account for the law or the impact of the decision.
Lawyers for DACA applicants are preparing to ask Garaufis and other judges to force the administration to again accept first-time applicants into the program, which allows foreigners who entered the U.S. illegally as children to receive work permits and limited protection from deportation.