- The Washington Times - Tuesday, May 15, 2018

Federal appeals court judges signaled Tuesday that President Trump’s tweets could sink his efforts to end the Obama-era DACA deportation amnesty.

The panel of judges from the 9th U.S. Circuit Court of Appeals said Mr. Trump’s prolific comments on immigration and the Deferred Action for Childhood Arrivals program may have influenced the decision by then-acting Homeland Security Secretary Elaine Duke, when she decided last September to phase out DACA.

“I don’t know that we’ve ever had this situation before,” said Judge John B. Owens, whom President Barack Obama appointed to the 9th Circuit.

It’s the latest case moving through the federal courts to test Mr. Trump’s tweets and how much of an influence they have over government policy. Tweets are also an issue in president’s travel ban proposal, which is currently pending before the Supreme Court, and Judge Owens said the appeals panel may wait to see what guidance the justices offer on how much attention should be paid to the president’s tweetstorms.

At stake in the DACA case is Mr. Trump’s attempt to cancel a program that he repeatedly called illegal, but that is protecting some 700,000 Dreamers the president says he wants to help.

DACA supporters say Mr. Trump cut too many corners in the revocation, violating the Administrative Procedures Act, which requires a deliberate approach to major policy decisions.

The three judges who heard the case Tuesday — all appointed by Democratic presidents — aimed tough questions at both sides, and seemed conflicted over whether Mr. Trump had overstepped his powers in canceling DACA, but also wondered whether Mr. Obama had broken the law in creating the program in the first place in 2012.

Judge Kim McLane Wardlaw prodded DACA supporters, wondering why Mr. Obama was able to set up the DACA program without going through all the hoops required by the APA in 2012, if Mr. Trump is now being accused of not following the APA.

“Can you think of any other case where the implementation didn’t require notice and comment but the rescission did?” she asked Jeffrey Davidson, a lawyer for the University of California system, which is fighting to preserve DACA.

Mr. Davidson said there’s case law that says even if a program was improperly set up, that doesn’t relieve the government of the burden of following the rules to dismantle it.

Judge Jacqueline Nguyen also suggested that because the program has been around for nearly six years, it should be tougher to unwind, because the people in the program now have a vested stake in it.

“Thousands of people have built lives around the benefits conferred by this program,” she said.

Mr. Obama himself said he didn’t have powers to create DACA, before reversing himself and claiming those powers in 2012, setting up a program to grant work permits and Social Security cards to hundreds of thousands of immigrants who came to the U.S. illegally before age 16, and who had pursued schooling and kept a generally clean criminal record.

Mr. Trump during the 2016 campaign called the program illegal, but also said he wanted to find a solution for the Dreamers involved.

Facing the threat of a costly lawsuit that could nix the program immediately, the Trump administration instead announced a gradual phaseout, saying it would continue to recognize existing two-year work permits but set a cut-off date for issuing renewals.

Courts in California, New York and Washington, D.C., have since ruled the phaseout illegal, while a court in Maryland ruled it was legal.

The Trump administration had asked the Supreme Court to take the case directly but the justices declined, leaving it to appeals courts like the 9th Circuit.

In the meantime Texas has made good on its threat from last year and has now sued to overturn the original DACA program itself.

That’s left a legal morass that could have one court rule the 2012 program illegal, even as another court rules the revocation illegal — and both rulings would apply nationwide.

“What we would do in that circumstance is something we’re still figuring out,” said Hashim Mooppan, the Justice Department lawyer defending the Trump administration.

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

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