Deferring Democracy: What the DACA Ruling Means

By | 2018-01-11T12:10:20+00:00 January 11th, 2018|
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Judge William Alsup

Since President Donald Trump took office last year, the federal judiciary has led the Deep State’s massive resistance to the results of an election they refuse to accept. Lawless judicial decisions by activist federal judges attempting to overturn legitimate policies have become so commonplace that they are scarcely newsworthy. Emboldened by an elite legal culture deeply contemptuous of bourgeois values, unelected, black-robed social-justice warriors do not hesitate to enjoin the lawful prerogatives of the executive branch, engaging in defiance bordering on sedition. Activist judges routinely do the bidding of special interest groups who wish to avoid the consequences of elections—democracy be damned.

The Left is particularly devoted to remaking the nation through demographic transformation, a process begun in 1965 which had accelerated to crisis levels during the eight years of President Obama’s administration. Due to lax border enforcement, unscrupulous businesses eager to employ unskilled illegal aliens, and generous taxpayer-funded services, the United States became a magnet for illegal immigrants—now totaling at least 11 million, and possibly far more. Uncontrolled immigration—legal and illegal—imposes enormous costs on taxpayers, depresses wage rates, and threatens to overwhelm the fabric of unfortunate communities disproportionately bearing the weight of an influx of foreign-born populations. The melting pot is broken; assimilation isn’t working.

Deliver the Vote By Any Means Necessary
No single issue animated voters to reject the status quo in the 2016 presidential election as much as candidate Trump’s promise to secure the borders and enforce federal immigration law. And no other issue inspires activist judges to
resist disfavored policies more than the immigration reforms that President Trump has undertaken in the past year, consistent with his campaign promises. The Left’s dirty secret, as revealed in a leaked memo by the Center for American Progress, is that Democrats depend on illegal immigration for their future electoral success. Therefore, when Trump refused to grant amnesty to illegal immigrants by executive edict, the Left turned to its favorite venue—the federal courts—to stymie his action.

The Resistance finds a congenial home in California—a state increasingly disconnected from the rest of the country culturally and politically—and particularly the Golden State’s federal courts, which are nested within the most liberal and least disciplined court of appeals in the United States: the Ninth Circuit. So, it hardly came as a surprise when federal district court Judge William Alsup, appointed (for life) to the bench by President Bill Clinton, ruled this week that Trump’s rescission of the Deferred Action for Childhood Arrivals program was illegal. As has now become customary for renegade federal judges, Alsup, located in San Francisco, issued a nationwide injunction against the Trump Administration, ordering the federal government to accept DACA renewal applications.

Unlawful, Unconstitutional
The Obama Administration implemented DACA without congressional approval in
June 2012. It conferred a quasi-amnesty status on certain illegal immigrants who entered the country as children. Obama issued many controversial edicts by executive order, but DACA did not even rise to that ephemeral level of formality—it was a memo signed by Homeland Security Secretary Janet Napolitano.

DACA purported to provide quasi-legal status and work permits to certain illegal aliens, on a temporary (two year) basis, provided that they submit an application, meet certain criteria, and periodically apply for renewals. The temporary approval was called “deferred action.”

The program is almost certainly unconstitutional. Before authorizing DACA, Obama himself acknowledged numerous times he lacked constitutional authority to do so; only Congress can amend the immigration laws to confer amnesty, he declared. Nevertheless, Obama’s DACA memo sought to confer legal status on a large number of illegal aliens (so-called “Dreamers”) who entered the United States as children. President Trump rescinded his predecessor’s policy, and he plainly had the constitutional right to do so. Memos are not law; they are simply memos.

Importantly, Trump did not revoke DACA altogether; he terminated DACA prospectively—he did not cancel the legal status of any current “Dreamers,” but merely declared that he would not renew approvals upon their expiration. No matter—the Left predictably went berserk.

An Obvious Political Stunt
The lead case before Judge Alsup was brought by the same person who signed the DACA memo, Janet Napolitano. Only now
she was acting in her capacity as president of the University of California. Her claimed injury as plaintiff was that the loss of DACA status by California residents would harm the university because the UC Regents have “invested considerable resources in recruiting students and staff who are DACA recipients.” Without DACA, the university would be unable to employ “Dreamers” (in the process losing “significant intellectual capital and productivity”), and illegal aliens now enrolled at one of the UC system’s nine undergraduate campuses might be forced to withdraw.

In other words, the enforcement of federal law constitutes a hardship. This is an absurd (and self-serving) claim, by the architect of a failed policy that was rejected by the succeeding presidential administration. That is what elections are for—to allow the voters to change directions.

Judge Alsup’s decision is an obvious political stunt. Despite being dressed up in nearly 50 pages of ponderous legal mumbo-jumbo, it is a transparently collusive effort to sabotage Trump’s agenda, with all the subtlety of a college sit-in demonstration. Critics have derided Alsup’s handiwork as “a ludicrous ruling,” “an amateur act of punditry,” and “a bizarre pro-illegal alien decision.” It is indeed all of those things. It will surely be reversed, as Alsup’s prior DACA rulings have been. But it is more than a mere stunt. It is an affront to the rule of law. A federal judge, cynically exploiting Americans’ reverence for our marble-columned institutions, is brazenly engaged in partisan politics masquerading as a judicial decision.

As South Texas College of Law professor Josh Blackman has noted, Alsup’s “reasoning” resembles the florid language one would expect to hear on MSNBC: “Such rhetoric in a judicial decision would have been unthinkable barely a year ago. But now it passes for the new normal.”

This “new normal” is grounds for alarm. It means that we have crossed the Rubicon. Activist judges have shed any semblance of neutrality, and now issue intellectually-dishonest decisions distorting logic and misstating the law to achieve the desired partisan result. In the Age of Trump, judges engaged in the Resistance have become naked political actors. This is a pernicious development—government by judicial fiat—that must be confronted directly and forcefully. Our entire system of representative democracy is at stake.

About the Author:

Mark Pulliam
Mark Pulliam is a lawyer and commentator who fled California and now lives in Austin, Texas. He is a contributing editor at the Library of Law and Liberty and proprietor of the Misrule of Law blog.