President Trump has been criticized, including by Supreme Court Chief Justice John Roberts, for asserting that “Obama judges” have ruled against his policies.
Now, the U.S. Supreme Court is considering a case in which judges favored an Obama order on immigration over President Trump’s order to reverse it.
The fight is over DACA, the Deferred Action for Childhood Arrivals program, created through a policy memorandum by the Obama administration. Established in 2012, it defers deportation for some individuals who were brought to the United States illegally as children. Obama expanded the order in 2014 to include additional illegal immigrants.
But the U.S. attorney general concluded Obama’s executive actions were unconstitutional, and Trump ordered that the program eventually be shut down. Open borders groups sued and a number of judges ruled in their favor, determining Trump did not have the authority to end the program.
Now, several advocacy groups have joined in a friend-of-the-court brief asking for a Supreme Court review of DACA cases.
Attorney William J. Olson filed the brief on behalf of Citizens United, English First Foundation, 60 Plus Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, Policy Analysis Center and others.
“The case before the court involves the lawfulness of the action by the Trump administration to wind down and terminate the Obama administration’s DACA policy. This was an issue on which President Trump campaigned, and which he was elected by the people to implement,” states the brief.
“The actions by the courts below assume the legality of DACA, rather than decide it. They have been seen by many as thwarting the expressed will of the people, not because DACA repeal violates a provision of the U.S. Constitution or a federal law, but because it violates the will of the judges.
“If the American people do not believe they can change policy by changing presidents, our nation will move into a dangerous time, that would resemble what France is now experiencing with the ‘Yellow Vest’ riots,” the document contends.
The brief points contests the lower courts’ rulings.
“If, as the Ninth Circuit appears to believe, the continuation of DACA was an action within the judicially unreviewable discretion of the executive department of the Obama administration, then it would be only common sense that the action of the executive department of the Trump administration rescinding DACA is similarly unreviewable. But the Ninth Circuit ruled otherwise, asserting that President Trump’s attorney general transformed what would have been an exercise of discretion into a judicially reviewable act solely by his belief that DACA should be rescinded because it was initially an unconstitutional exercise of executive authority.”
The filing also notes the propensity of Obama-appointed judges to oppose the president’s policies.
“The issuance of nationwide, universal injunctions by courts proclaiming what the laws are for all rather than settling disputes between parties before it, is a new and troublesome development with serious repercussions for the rule of law. The ability of litigants to file challenges to executive branch action in carefully selected jurisdictions to get rulings from judges thought to be predisposed to the plaintiffs’ cause impairs the proper functioning of a constitutional republic,” the filing states.
There have been several cases in which judges have determined Obama had constitutional authority to grant exemptions to immigration law but Trump had not authority to reverse them.
The brief argues judges do not have final say on the law, quoting President Andrew Jackson.
“The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution,” he said back in 1832. “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. … The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the president is independent of both.”
The filing continues: “Thus, whether the prior administration’s DACA policy is lawful should be an important question on which this court grants review. It would be entirely anomalous to say that one administrative action undoing another administrative action because it was unlawful is arbitrary and capricious without examining whether that initial administrative action is lawful.”