Trump statements get scrutiny in DACA appeal
Disparaging remarks that President Donald Trump made about Latinos and Mexicans surfaced Tuesday at a key appeals court hearing on the Trump administration’s bid to end the program protecting so-called Dreamers—immigrants brought to the U.S. illegally as children.
As a three-judge 9th Circuit Court of Appeals panel considered whether to lift an injunction ordering the federal government to continue the Deferred Action for Childhood Arrivals program, Judge John Owens repeatedly raised the question of whether racial bias played a part in the Trump administration’s decision to wind down DACA.
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Owens formulated his questions in constitutional terms, asking about “equal protection” claims, but a lawyer for DACA recipients jumped at the chance to talk about Trump’s inflammatory statements.
“The president both before and after he took office referred to individuals from the very countries they’re coming from as drug dealers, as druggies, as criminals, as bad individuals,” said Mark Rosenbaum of Public Counsel.
The Justice Department lawyer defending the government’s attempt to end DACA, Hashim Mooppan, insisted that Trump’s statements weren’t relevant because the decision, announced last September, was made by the acting secretary of homeland security at the time, Elaine Duke.
“They have to have clear evidence of discriminatory intent,” Mooppan said of the plaintiffs. “They don’t have a single allegation in their complaint about the acting secretary’s motives in this case. The acting secretary is the decision-maker here,” the Justice Department attorney insisted.
“Right, but the acting secretary ultimately reports to the president of the United States, and he has said all kinds of things that could be relevant in this litigation,” countered Owens, an appointee of President Barack Obama.
“They haven’t cited any case,” Mooppan answered, that showed “you can impute to a Cabinet secretary individual motives based on the statements of the president of the United States.”
“I don’t think we’ve ever had this situation before. We’re on new ground here,” Owens said.
The 75-minute argument session in Pasadena, Calif., concerned a preliminary injunction issued in January by San Francisco-based U.S. District Court Judge William Alsup, who sharply disputed the Trump administration’s stated basis for rescinding DACA—that it was illegal and likely to be halted abruptly by the courts. Alsup said Attorney General Jeff Sessions’ conclusion was “based on a flawed legal premise” and could not support the decision to end DACA.
Since Alsup’s decision, federal judges in Brooklyn, N.Y., and Washington, D.C., reached similar conclusions.
The Trump administration initially sought to bypass the 9th Circuit and other appeals courts by taking the issue directly to the Supreme Court, but the justices declined to allow an end-run around the usual appeals process.
None of the three judges who heard the appeal Tuesday announced a clear position on the case. But Judges Kim Wardlaw and Jacqueline Nguyen both appeared to lean in favor of upholding the injunction.
“The more time that passes, the greater the reliance interest because now you’ve got thousands of people how have built their lives around the benefits conferred by this program,” said Nguyen, an Obama appointee.