- The Washington Times - Wednesday, March 14, 2018

The Justice Department said in court Wednesday that Attorney General Jeff Sessions made an “error” in his memo laying out the legal problems with the Obama-era DACA program, as a federal judge repeatedly blasted the Trump administration for weak reasoning in revoking the deportation amnesty.

Government lawyers say the error isn’t enough to sink their case, arguing Deferred Action for Childhood Arrivals program is unlawful and the risks of trying to defend it in court were enough to justify the six-month phaseout the acting Homeland Security secretary initiated last year.

But Judge John D. Bates seemed skeptical, prodding government lawyers on what he suggested was questionable legal reasoning by the Justice Department and thin justifications from Homeland Security.

“There isn’t that much in the agency decision,” the judge, appointed to the bench by President George W. Bush, told the government.

He repeatedly asked lawyers what would happen if he were to send the phaseout decision back to the department to try again.

Both sides agreed that depending on how the judge wrote that decision, it could mean kick-starting the DACA program again. That would mean not only taking renewal applications — which the department is already doing, thanks to two other judges’ orders — but even allowing perhaps tens of thousands of brand new Dreamers to sign up for DACA.

Judge Bates is just the latest court to consider the phaseout. Two other federal judges in California and New York have ruled the phaseout illegal, while one in Maryland ruled it legal.

Acting Homeland Security Secretary Elaine Duke announced the phaseout Sept. 5, citing a letter from Mr. Sessions that told her to rescind DACA because it lacked legal backing.

In his letter, Mr. Sessions said DACA “was an unconstitutional exercise of authority by the executive branch.” He pointed to a ruling by a federal appeals court in 2015 that found a similar deportation amnesty for millions of additional illegal immigrants — a program called Deferred Action for Parents of Americans.

“Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA,” Mr. Sessions said.

But Judge Bates said that was wrong. He said while courts had ruled DAPA was illegal because it cut procedural corners, no court had ruled it unconstitutional.

“So the attorney general is not correct” on how the 5th Circuit judges ruled, Judge Bates demanded of Kathryn C. Davis, a Justice Department lawyer.

She concurred: “It was an error to assert they reached a constitutional issue.”

Judge Bates isn’t the first to call Mr. Sessions on the error in the memo.

The federal judge in New York who ruled against the phaseout last month also said Mr. Sessions got the legal issues wrong.

The Justice Department is appealing that ruling, and in briefs filed last week government lawyers said the mistake was “plainly harmless.”

The government said Ms. Duke would have gone through with the phaseout based on the rest of the information she saw beyond Mr. Sessions’ letter, including the 5th Circuit’s DAPA ruling and threats by conservative states to sue over DACA.

In a statement to The Washington Times after Wednesday’s hearing, the Justice Department said Mr. Sessions’ letter was intended to reflect his own legal conclusions.

“Read in its entirety, the attorney general’s letter should not be interpreted as attributing constitutional holdings to the Texas courts, but rather as invoking the legal grounds they adopted in support of his own view that DACA was unconstitutional,” the department said. “As the department of Justice correctly explained at argument, DACA violates separation of powers principles because the executive branch is taking action that Congress had chosen not to allow.”

Legal analysts have faulted the government’s approach to defending the phaseout in courts.

Josh Blackman, an associate professor at the South Texas College of Law, has called parts of Mr. Sessions’ letter “confounding,” and has written that the Justice Department isn’t arguing it properly in the cases.

Mr. Blackman also wondered why the Justice Department has not rescinded an Office of Legal Counsel opinion issued in 2014 declaring DACA and DAPA legal.

Judge Bates wondered the same thing, saying he’d been looking in either Mr. Sessions’ or Ms. Duke’s documents for an explanation of why they were ignoring the OLC.

“It’s not there,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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