Trump crack­down on il­le­gals lim­ited de­spite court vic­tory

Im­mi­grants go to judges ap­pointed by Obama

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DINAN

Pres­i­dent Trump may have won a par­tial vic­tory at the Supreme Court this week, but other fed­eral judges re­main ma­jor stum­bling blocks to his ag­gres­sive im­mi­gra­tion plans, with courts from Cal­i­for­nia to Michi­gan and At­lanta lim­it­ing his crack­down on sanc­tu­ary cities and stop­ping him from de­port­ing il­le­gal im­mi­grants he has tar­geted for re­moval.

The judges in those de­por­ta­tion cases have re­jected Mr. Trump’s ar­gu­ment that he has wide lat­i­tude to de­cide who gets kicked out, with­out hav­ing to worry about district courts sec­ond-guess­ing him on facts of the case.

In­stead, the judges said, they get to de­cide their ju­ris­dic­tion, and that ex­tends to re­view­ing Mr. Trump’s im­mi­gra­tion pol­icy.

One judge in Michi­gan or­dered the Home­land Se­cu­rity Depart­ment to freeze all de­por­ta­tion plans for about 200 Chaldean Chris­tians ar­rested over the past two months and sched­uled to be sent back to Iraq. Nearly ev­ery one of them has a crim­i­nal record.

A judge in At­lanta or­dered the depart­ment to re­in­state the tem­po­rary de­por­ta­tion amnesty — known in gov­ern­ments­peak as the DACA pro­gram — for Jes­sica Colotl, an il­le­gal im­mi­grant Dreamer whose past made her a tar­get for de­por­ta­tion, of­fi­cials said.

“The public has an in­ter­est in govern­ment agen­cies be­ing re­quired to com­ply with their own writ­ten guide­lines in­stead of en­gag­ing in ar­bi­trary de­ci­sion-mak­ing,” said Judge Mark H. Co­hen, break­ing new ground in es­tab­lish­ing le­gal rights for some

il­le­gal im­mi­grants.

On Tues­day, a fed­eral judge in Cal­i­for­nia or­dered the Bor­der Pa­trol to im­prove its treat­ment of il­le­gal im­mi­grant chil­dren caught sneak­ing across the bor­der. She said she was trou­bled by sto­ries from il­le­gal im­mi­grants who said they were kept in dirty rooms with­out pri­vate toi­lets and some­times had to wait up to 12 hours for their first meals.

When they were fed, it wasn’t enough, con­cluded Judge Dolly M. Gee.

Judge Gee ruled that the Bor­der Pa­trol must pro­vide the chil­dren with soap, tooth­brushes and tooth­paste, and ac­cess to show­ers.

No­tably, all four of the judges — in­clud­ing one in San Fran­cisco who blocked part of Mr. Trump’s ex­ec­u­tive or­der against sanc­tu­ary cities — were ap­pointed to the bench by Pres­i­dent Obama.

“Al­most all of the judges are act­ing out­side of es­tab­lished law,” said Hans von Spakovsky, a se­nior le­gal fel­low at The Her­itage Foun­da­tion who served as a Jus­tice Depart­ment lawyer in the Bush ad­min­is­tra­tion.

For David Leopold, a former pres­i­dent of the Amer­i­can Im­mi­gra­tion Lawyers As­so­ci­a­tion, the judges are he­roes up­hold­ing the Con­sti­tu­tion when the po­lit­i­cal branches of govern­ment won’t.

“You’ve got the Repub­li­cans play­ing ball in the Se­nate and the House. The only in­sti­tu­tion that’s putting a check on this guy is the ju­di­ciary,” he said.

The Trump ad­min­is­tra­tion is fight­ing all the rul­ings but has had lit­tle luck con­vinc­ing lower-court judges of Mr. Trump’s pow­ers on im­mi­gra­tion.

Mr. Trump, though, has had suc­cess at the Supreme Court, which is­sued a 9-0 de­ci­sion this week re­viv­ing part of his travel ban ex­ec­u­tive or­der, which im­poses a 90-day pause on some vis­i­tors from six ma­jor­ity-Mus­lim coun­tries and a 120-day halt to all refugee ad­mis­sions.

Re­vers­ing sev­eral lower-court rul­ings — all also is­sued by judges ap­pointed by Democrats — the Supreme Court said Mr. Trump could stop refugees and vis­i­tors when they don’t al­ready have “bona fide” close con­nec­tions to peo­ple or en­ti­ties in the U.S. For those who do have close con­nec­tions, how­ever, they have rights that must be re­spected.

Home­land Se­cu­rity is work­ing out how it will in­ter­pret those di­rec­tives, but an­a­lysts are deeply di­vided on what it means and whether the jus­tices de­liv­ered a mes­sage to lower courts to back off their crit­i­cism of Mr. Trump.

Where lower-court judges pored over

Mr. Trump’s cam­paign state­ments and pe­rused his Twit­ter ac­count look­ing for ev­i­dence to use against him, the Supreme Court took the pres­i­dent’s ex­ec­u­tive or­der at face value.

“The Supreme Court treated this like a nor­mal case, like a nor­mal ex­ec­u­tive ac­tion. So cer­tainly this has to af­fect — prob­a­bly not all judges, but cer­tainly some,” said Ilya Shapiro, edi­tor-in-chief of the Cato In­sti­tute’s Supreme Court Re­view.

He said that could set the stage for a re­turn to the pos­ture of the Obama years, when many of his ac­tions were chal­lenged in court but were greeted with se­ri­ous­ness by the judges who heard the cases — what le­gal schol­ars have come to call the “pre­sump­tion of reg­u­lar­ity.”

“I don’t think we’re there yet,” Mr. Shapiro said. “The [pres­i­dent’s] con­stant tweets — not just about im­mi­gra­tion but lots of things — feed the fire of the re­sis­tance.”

Mr. von Spakovsky called the Supreme Court rul­ing “a slap in the face” to the judges who ruled against the broad swath of the pres­i­dent’s im­mi­gra­tion plans.

“These judges are clearly hop­ing these cases don’t get ap­pealed, don’t get to the Supreme Court, be­cause if they do, they’re go­ing to get over­turned,” he pre­dicted. “The les­son to them is they need to quit mak­ing po­lit­i­cal de­ci­sions based on the fact they don’t like the pres­i­dent and his pol­icy, and start mak­ing le­gal de­ci­sions that fol­low bind­ing prece­dent.”

Some an­a­lysts said the key part of the Supreme Court’s rul­ing was show­ing def­er­ence to the pres­i­dent’s na­tional se­cu­rity de­ci­sion-mak­ing. The jus­tices said his judg­ment had to carry weight, par­tic­u­larly

when it came to peo­ple who don’t have a con­nec­tion to the U.S. and there­fore don’t have con­sti­tu­tional rights to be weighed.

The court will hear broader ar­gu­ments in the travel ban case in Oc­to­ber.

Mr. Leopold said he ini­tially saw the rul­ing as a loss for im­mi­grant rights ad­vo­cates, but af­ter reread­ing it he con­cluded it’s a ma­jor win for his side and a slap at Mr. Trump.

“This is a re­buke,” he said. “They weren’t harsh in their words. It was very pro­fes­sional … But if you read be­tween the lines, they ba­si­cally say, ‘No, no, we’re not go­ing to de­fer to you on na­tional se­cu­rity here.’”

He also said the rul­ing is much more lim­ited in em­pow­er­ing Mr. Trump than it might seem and that few peo­ple will be snared by the part of the ex­ec­u­tive or­der that the court re­vived, tar­get­ing those with­out close con­nec­tions to the U.S.

But on Wed­nes­day evening, the State Depart­ment is­sued a new set of visa guide­lines to U.S. em­bassies on the six af­fected coun­tries that was much nar­rower than im­mi­gra­tion ad­vo­cates might have hoped.

Ad­vo­cacy groups said ear­lier Wed­nes­day that if they thought the pres­i­dent was be­ing too st­ingy, they would head back to the courts and likely the same lower-court judges who first ruled against Mr. Trump.

Mr. Leopold said that, far from be­ing chas­tened, those judges will now feel em­bold­ened by the Supreme Court.

“I think it stiff­ens the spine be­cause they’re look­ing at this and they’re ba­si­cally be­ing up­held on the in­junc­tion,” he said. “Those judges have not been over­ruled.”


AD­VO­CATE: Pres­i­dent Trump met Wed­nes­day with what the White House iden­ti­fied as “im­mi­gra­tion crime vic­tims” to urge pas­sage of House leg­is­la­tion.

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