Judges for the #Resistance

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

The source is the 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. They get to exercise the full panoply of sweeping powers of the imperial presidency. Trump, on the other hand, 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. Eligible undocumented immigrants applied and then were awarded work permits and Social Security numbers, and not on a case-by-case basis, but essentially as a class.

This is why DACA’s sister program, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), which would have applied to a wider population of undocumented immigrants, was blocked in the courts, with an evenly divided Supreme Court upholding the injunction.

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