Originally published by Politico
Disparaging remarks that President Donald Trump made about Latinos and Mexicans surfaced Tuesday at a key appeals court hearing on the Trump administration's bid to end the program protecting so-called Dreamers—immigrants brought to the U.S. illegally as children.
As a three-judge 9th Circuit Court of Appeals panel considered whether to lift an injunction ordering the federal government to continue the Deferred Action for Childhood Arrivals program, Judge John Owens repeatedly raised the question of whether racial bias played a part in the Trump administration's decision to wind down DACA.
Owens formulated his questions in constitutional terms, asking about "equal protection" claims, but a lawyer for DACA recipients jumped at the chance to talk about Trump's inflammatory statements.
"The president both before and after he took office referred to individuals from the very countries they're coming from as drug dealers, as druggies, as criminals, as bad individuals," said Mark Rosenbaum of Public Counsel.
The Justice Department lawyer defending the government's attempt to end DACA, Hashim Mooppan, insisted that Trump's statements weren't relevant because the decision, announced last September, was made by the acting secretary of homeland security at the time, Elaine Duke.
"They have to have clear evidence of discriminatory intent," Mooppan said of the plaintiffs. "They don’t have a single allegation in their complaint about the acting secretary's motives in this case. The acting secretary is the decision-maker here," the Justice Department attorney insisted.
"Right, but the acting secretary ultimately reports to the president of the United States, and he has said all kinds of things that could be relevant in this litigation," countered Owens, an appointee of President Barack Obama.
"They haven't cited any case," Mooppan answered, that showed "you can impute to a Cabinet secretary individual motives based on the statements of the president of the United States."
"I don't think we've ever had this situation before. We're on new ground here," Owens said.
The 75-minute argument session in Pasadena, Calif., concerned a preliminary injunction issued in January by San Francisco-based U.S. District Court Judge William Alsup, who sharply disputed the Trump administration's stated basis for rescinding DACA—that it was illegal and likely to be halted abruptly by the courts. Alsup said Attorney General Jeff Sessions' conclusion was "based on a flawed legal premise" and could not support the decision to end DACA.
Since Alsup's decision, federal judges in Brooklyn, N.Y., and Washington, D.C., reached similar conclusions.
The Trump administration initially sought to bypass the 9th Circuit and other appeals courts by taking the issue directly to the Supreme Court, but the justices declined to allow an end-run around the usual appeals process.
None of the three judges who heard the appeal Tuesday announced a clear position on the case. But Judges Kim Wardlaw and Jacqueline Nguyen both appeared to lean in favor of upholding the injunction.
"The more time that passes, the greater the reliance interest because now you’ve got thousands of people how have built their lives around the benefits conferred by this program," said Nguyen, an Obama appointee.
"I love that question," Rosenbaum gushed.
Wardlaw suggested Sessions' one-page legal analysis lacked depth and seriousness.
"Before the institution of DACA was made there was a 32-page decision and memo by the Office of Legal Counsel," she said. "Yet the decision to rescind appears to be based entirely on this letter from Attorney General Sessions."
Mooppan noted that Wardlaw wasn't quite right: While the Obama administration issued a lengthy legal opinion to support its expansion of protections for undocumented immigrants in 2014, there was no written opinion backing up the original DACA program in 2012. Lawyers in the Justice Department gave verbal advice that DACA was lawful.
Despite raising the issue about Trump's statements and racial bias, Owens was the most skeptical judge on the panel about the merits of Alsup's ruling that the decision to end DACA was arbitrary and capricious. Owens repeatedly suggested that decisions to end a program like the one for Dreamers aren't subject to the kind of review given to many government actions.
Owens said the 9th Circuit panel might want to wait to see how the Supreme Court rules on a pending challenge to Trump's travel ban policy—a dispute where the justices are being asked to decide the relevance of many of Trump's comments and tweets about Muslims as a candidate and as president.
Wardlaw also noted that Texas and six other states recently filed a long-threatened lawsuit over DACA, seeking to block any new enrollments in the program. Alsup's injunction and the one issued by the Brooklyn judge don't require the government to allow new people into the program, but the Washington-based judge who ruled on a DACA suit said he would require the government to begin accepting new applications in July if officials don't come up with a better explanation for their rationale in ending it. (Only those who've been in the U.S. for more than a decade would be eligible, however.)
Wardlaw asked what the administration plans to do if the judge in Texas issues an order that's at odds with what the three other judges have demanded.
"This is one of many reasons why nationwide injunctions are not an appropriate thing for courts to issue. It puts the government in this conflicted position where we can be faced with injunctions going both ways," Mooppan responded.
"You'd be in paralysis, right?" Wardlaw said.
"What we would do in that circumstance is something we are still figuring out," the Justice Department lawyer replied.
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