Take Immigration Away from Judges, Legal Expert Says

Former magistrate contends federal judiciary has again overstepped its authority with new anti-Trump DACA ruling

by Brendan Kirby | Updated 25 Apr 2018 at 12:49 PM

In the wake of the latest blow to President Donald Trump’s authority to end a quasi-amnesty program created by his predecessor, Congress should limit the role of the courts, a former immigration law judge said Wednesday.

Tuesday’s ruling, issued by U.S. District Judge John Bates, is the third to challenge the Trump administration’s authority to end the Deferred Action for Childhood Arrivals (DACA) program. Bates went further than the previous rulings, however, ordering the administration not only to keep current enrollees but also to start accepting new applicants within 90 days if officials cannot offer a better rationale for rescinding the program.

“In the DACA cases, you’re continuing a program that, quite frankly, is probably illegal,” former immigration judge Andrew “Art” Arthur said on “The Laura Ingraham Show.”

Arthur, currently a senior fellow in law and policy at the Center for Immigration Studies (CIS), noted that Trump’s Department of Justice (DOJ) determined that former Secretary of Homeland Secretary Janet Napolitano exceeded her legal authority when she created DACA. He said Bates is only the latest judge who unilaterally has applied a ruling from a single federal district to effectively make nationwide policy.

“We need to come up with a scheme by which we can strip the district court judges,” he said.
Under DACA, illegal immigrants who came to the United States as children by 2007 can receive work permits and protection from deportation.

Former President Barack Obama and Napolitano denied the program was an executive overreach unauthorized by Congress by calling it “prosecutorial discretion.”

Arthur ridiculed that label.

“Look, I’ve been a prosecutor in the past, too,” he said. “Prosecutorial discretion is when you decide not to, you know, push a case too hard — not to grant benefits to 800,000 individuals who are illegally present in the United States and Congress has said should be removed from the United States.”

The fact that Congress refused during Obama’s tenure to pass the Development, Relief and Education for Alien Minors (DREAM) Act only bolsters the argument that the administration exceeded its authority, Arthur said.

“What’s really exceptional about the DACA program to begin with is the Democratic Congress, in which they had 59 senators, [and] were not able to get the DREAM Act passed,” he said.

While Democrats might be celebrating the ruling by Bates, Arthur said, it could come back to haunt them.

“Not only is it exceptional, but it actually, you know, calls into question the ability of future presidents to undo anything that President Trump is doing that they don’t like,” he said. “I mean the precedent for this is horrible … All of this nonsense needs to end.”

The DACA rulings are only the latest intrusions by the judiciary into a sphere that should belong to Congress and the executive branch, Arthur said.

He pointed to a 1997 agreement that a federal judge pushed the Department of Justice to accept in which children crossing the border illegally cannot be detained. Later, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled the presumption is that minor illegal immigrants should be released.

That has sparked a wave of families to come to the southwest border. Once the children get released, Arthur said, the parents know they also will be released.

The statistics suggest an immigration system out of control. Arthur noted that 107,000 children have been released since 2016; another 167,000 adults traveling with them also have been released.

Some 66 percent of the so-called unaccompanied minors have failed to appear in immigration court once released.

“When you take a look at these numbers, you know how we got into this situation,” he said.

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