Judges for the #resistance

  • By Rich Lowry
  • Sunday, April 29, 2018 10:32am
  • Opinion

There is a lawlessness rampant in the land, but it isn’t emanating from the Trump administration.

The source is federal judges who are making a mockery of their profession by twisting the law to block the Trump administration’s immigration priorities.

If the judges get their way, there will, in effect, be two sets of law in America — one for President Donald Trump and one for everyone else.

In this dispensation, other presidents, especially Democratic presidents, get a pen and a phone. Trump gets a judicial veto — even when he is simply trying to undo the unilateral moves of his predecessor.

This is the clear implication of the latest decision against Trump’s rollback of the Deferred Action for Childhood Arrivals program. U.S. District Court Judge John Bates in the District of Columbia held that Trump’s decision was “arbitrary and capricious.” If nothing else, the judge is an expert on arbitrariness. He would force the administration to begin granting new DACA permits if it doesn’t explain to his satisfaction the decision to end the program.

This would make some sense if Trump were stretching to defy a legal regime duly passed by Congress. He is not. That is what President Barack Obama did.

Because Congress declined to pass the DREAM Act, Obama implemented a version on his own. He justified DACA as prosecutorial discretion and to this day denies that he rewrote the laws. But if that is true — and it’s the only legal defense of DACA — there is nothing to stop Trump from reversing it via his own pen and phone.

Prosecutorial discretion must work both ways, or the law is a ratchet always working against immigration enforcement.

Especially given how Obama’s defense of DACA as prosecutorial discretion was a transparent rationalization. It wasn’t as though immigration authorities were coming across so-called Dreamers during traffic stops and deciding that pursuing removal would be a poor use of time and resources.

No, DACA set up a shadow immigration system outside of and in defiance of congressional enactments. This is why DACA’s sister program, DAPA, which would have applied to a wider population of illegal immigrants, was rightly blocked in the courts.

All the same arguments that sank DAPA should apply to DACA, but once Trump is part of the equation, all the rules change. Bates wants to hear a more extensive argument from the administration on why DACA is illegal. More to the point is the fact that there isn’t any remotely plausible case that it is unlawful to apply the law to illegal immigrants.

Obama himself long maintained that he lacked the authority to issue a unilateral amnesty for Dreamers. We’ve gone from everyone assuming that the president can’t act in defiance of the immigration laws to judges insisting that a president must act in defiance of the immigration laws.

Books have been written about the coming descent of the U.S. into fascism, but evidently no one who promotes or buys these tomes cares about the black letter of the law, at least not when it doesn’t suit their political interests.

The complaints on the right, meanwhile, about an unelected deep state trying to destroy the president are overdone. Yet here is an unelected branch of government overstepping its constitutional bounds to frustrate a core priority of a president who ran and won on the issue of immigration. This is corrosive of faith in our system, counter to the rule of law, and sophomoric on the part of men and women who are supposed to be neutral arbiters of justice.

The saving grace of the judiciary is that the Supreme Court, as of now, takes its responsibility more seriously. The oral arguments suggest that the court will, despite absurd rulings below, uphold Trump’s travel ban.

This is something, but it doesn’t remove the shame of those judges who, when it comes to Trump, substitute the logic of #resistance for common sense and the law.

Rich Lowry can be reached via e-mail: comments.lowry@nationalreview.com.

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