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Posted on May 18 2019





Trump’s DACA rescission


Ruled as arbitrary & capricious...


Before we dive in to yesterday’s Fourth Circuit Court of Appeals (4thCCOAs) might be beneficial to start our discussion with the September 4, 2017 letter from (then) Attorney General (AG) Jeff Sessions to (then) Acting Department of Homeland Security Elaine Duke. As this memo is the nexus that “launched a thousand ships” or a few dozen lawsuits. This is the  DHS archived link to the aforementioned letter. And the November 2018 9thCCOAs Ruling, coupled to SCOTUS’ 2018 punt, discussed further in this entry.


If only I could simply retweet the copious twitter threads, if’s like salt meet wound. Wash. Rinse. And Repeat.  


Notwithstanding you might recall at the time of the September 4 2017 letter, I literally and figuratively LLOL (Legal Laughed Out Loud) at both AG Sessions and president Trump. Why? Well that’s actually pretty easy to explain: 1) Trump doesn’t understand nor respect Public Policy 2) they both conflated DAPA and DACA, and/or 3) Trump most likely doesn’t understand or respect the legislative or judicial process, at all.* In the September 4, 2017 letter, I distinctly remember pointing out the last sentence of the second paragraph, which reads in part:

Because the DACA policy has the same legal and constitutional deffcts that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.


This 2017 DHS Archive particularizes what changes the AG Session Memo would effectuate on DACA recipients and applicants who are statutorily required to resubmit their applications every two years.




*full disclosure, because I really do try to be fair & balanced : Obama’s Executive Order (2012) regarding DACA and DAPA could also be argued that he overreached. Because that’s exactly the arguments argued in the 5thCCOA and subsequently at SCOTUS...yet Sessions failed to be intellectually honest about the April 2015  5thCCOAs ruling regarding DACA, which plainly stated:





As expected after the Trump Administration rescinded DACA a flurry of lawsuits were filed challenging Trump’s Executive Order. The various lawsuit worked their way through the District Court system. And eventually worked their way through the various Circuit Court of Appeals. Since I don’t know how Trump or his Administration “thinks” I can only conclude that Trump’s January 2018 SCOTUS filing colloquially known as: “cert before judgment” was a preemptive end-run to foreclose the 9thCCOAs expected ruling. This 2011 scotusblog write up is one of the best “cert before judgement” explanations that I’ve encountered.



As you can see on February 26, 2018 , SCOTUS DOCKET No: 17-1003 Trump’s “cert before judgement” was denied. If my memory serves me correctly, I believe my twitter thread had predicated this. I specifically stated “ripeness” and that if SCOTUS granted Trump’s request to skip past the Circuit Court of Appeals it would effectuate a terrible precedence and ultimately emboldened an Executive that was drunk on power.



One would think that the current Solicitor General would have educated Mad-King-Trump about the rules of SCOTUS, specifically Rule 11. See the 2017 (page 10) and 2019 (page 10) Rules.


Court Rules


Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is en- tered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require im- mediate determination in this Court. See 28 U. S. C. § 2101(e).


The only changes to the SCOTUS rules 2017 v 2019 can be found below. And NO Rule 11 did not change.




9thCCOAs REJECTS Trump’s DACA recession


With respect to the November 2018 9thCCOAs DACA Ruling in cases:

Appeal Case No 18-15068 original case:  D.C. No. 3:17-cv-05211-WHA

Appeal Case No 18-15069 original case D.C. No. 3:17-cv-05235-WHA

Appeal Case No 18-15070  original case: D.C. No. 3:17-cv-05329-WHA

Appeal Case No. 18-15072 original case: D.C. No. 3:17-cv-05813-WHA

Appeal Case No. 18-15128 original cases D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA

Appeal Case No. 18-15133 original cases D.C. Nos. 3:17-cv-05211-WHA, 3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA

Appeal Case No. 18-15134 original cases D.C. Nos. 3:17-cv-05211-WHA,3:17-cv-05235-WHA, 3:17-cv-05329-WHA, 3:17-cv-05380-WHA, 3:17-cv-05813-WHA

In the spirit and fashion of judicial economy and efficiency, the above cases were consolidated, as such the November 8, 2018 9thCCOAs ruling applied to all.



You will note (on pages 10 & 11 respectively) that the 9thCCOAs pulled from the 5thCCOA previous ruling. Ergo for once there wasn’t a substantive split in the Appeals Circuit. Meaning when there is a substantive split within the Appeals Circuit that typically paves a path straight to the doorstep of SCOTUS. 

The 9thCCOAs panel held the following:


DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. Thus, the panel concluded that, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside under the APA as arbitrary and capricious....district court did not abuse its discretion in issuing a nationwide injunction, noting that such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.

 In my non binding opinion, I found pages 20 thru 28  where Judge WARDLAW, (writing for the majority) eloquently verbalizes the intolerable cruelty and profound racial animus that appears to be the “guiding” lodestar of the Trump Administration...

...specifically it is this opening that struck a strident cord with me:



Admittedly as a parent who adopted a foreign born child and as immigrant who’s own parents (lawfully) brought me to America...this particular passage also resonated with me. I know I’ve jokingly said we went from HOPE to HATE...I still stand behind that assertion. Like many of you, I am exhausted by Trump and his onerous policies. All while the GOP members of Congress say and do nothing. Candidly I’m starting to accept the realization that Trump enjoys being cruel and so do many current Republican members of Congress.


Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA...


I don’t think I can properly enumerated or even attempt to contextualize how many times the Federal Courts (both District and Circuit Court of Appeals) have ruled that the Trump Administration and/or Trump Executive Orders are unlawful. Trump’s win:loss ratio is terrible, kind of like his “art of the no deal”. 

As I’ve previously said when you see words like “arbitrary” and/or “capricious” in a Order/Memorandum/Opinion that’s effectively having an Article III Judge telling us that “the Executive” has overreached.





With respect to specific arguments concerning Trump’s unlawful DACA recession, time and time again Trump via his solicitor general and/or his DOJ sycophants argue (I’m paraphrasing here) Obama wasn’t a real president and I’m president-orange-bigly and I can do what ever the hell I want...”because I’m president and you’re not” is such a pernicious and unavailing argument that most of the time I read Trump’s legal briefs and literally LLOL at him, not with him but at him.


 “...government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review...we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief. (emphasis added)


 I discuss Marbury v Madison in greater detail below. Now that you have a far more comprehensive understanding the series of judicial  events leading up to yesterday’s 4thCCOAs Ruling, let’s go ahead and chug a Red Bull and dissect the ruling...shall we?







In case you didn’t know the 4thCCOAs is one of the more “ideological conservative” Courts within the whole Circuit. They do tend to be very verbose (that’s a compliment) yet incredibly fair. I personally have a few favorite Judges but it would not be very professional of me to say who and why. Beyond I’ve spent a decent amount of time in Richmond VA so my opinions are based on Courtroom atmospheric tendencies which can be hard to pick up on in the papers.. What I can say that there’s a healthy balance of congeniality and pragmatism, coupled with respect for all parties. It is by far one of the better Circuits.


One thing to keep in mind is based on the docket load the 4thCCOAs issue Rulings is various batches. This is pretty standard for the Appeals Circuit writ large. Whereas the 2ndCCPAs & 9thCCOAs tend to churn out daily Opinions (both published, unpublished and occasionally en banc)...the Court of Appeals for the Federal Circuit (DC)  tends to also issue daily opinions.

What most of you may not know is this Court is unique to all other thirteen Circuit Courts of retains Nationwide Jurisdiction on a variety of matters, such as, but not limited to;


international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans' benefits, and public safety officers' benefits claims.

Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims.

The court also takes appeals of certain administrative agencies' decisions, including the United States Merit Systems Protection Board, the Boards of Contract Appeals, the Patent Trial and Appeal Board, and the Trademark Trial and Appeal Board. Decisions of the United States International Trade Commission, the Office of Compliance, an independent agency in the legislative branch, and the Government Accountability Office Personnel Appeals Board, and the Department of Justice Bureau of Justice Assistance also are reviewed by the court.

Many of the administrative law cases consist of personnel and veterans claims. Nearly all of the intellectual property cases involve patents. Suits for money damages against the United States government include government contract cases, tax refund appeals, unlawful takings, and civilian and military pay cases.



With respect to the 4thCCOAs, there’s one case that I’ve been waiting’s the MD & DC AGs v Trump et al re: Emoluments Case (👈🏻I embedded the audio of the March 2019 Hearing in that entry)

This 4thCCOAs link will take you to their daily opinions, the landing page will look like this:





Summary of the three judge panel 2:1


You can read the 60 page Published Opinion in its entirety via the 4thCCOA link 181521.P Casa De Maryland v. DHS (Diaz 5/17/2019).



Affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded by published opinion. Judge Diaz wrote the majority opinion, in which Judge King joined. Judge Richardson wrote an opinion concurring in part and dissenting in part.


The 4thCCOAs held:



“...district court determined that Plaintiffs’ challenges were subject to judicial review, that the rescission of DACA and changes to the government’s policies on use of DACA applicant information did not violate the APA, that the constitutional claims were without merit, and that DACA’s rescission did not violate principles of estoppel. The court, however, ordered the government (on grounds of estoppel) to comply with the policies promulgated in 2012 on the use of information provided by DACA applicants and enjoined it from altering these policies.”


Granted I’m not an attorney but I do find yesterday’s 4thCCOAs ruling intriguing because this could be viewed as the 4thCCOAs “demurring” while invoking the doctrine of constitutional avoidance”....if you’re not familiar with Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). SCOTUS via the Marshall Court effectively establishes, “the principle of judicial review, i.e., the power to declare a law unconstitutional”colloquially known as jurisdiction and/or reviewability.  


With respect to the doctrine of constitutional avoidance this was later affirmed in:  Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936), where SCOTUS held:


“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of."


In non-legalese that means SCOTUS has instructed the lower courts to avoid ruling on Constitutional matters if a determination can be made based on existing statutes. Simply put, avoid or use as a last resort. Turning to the lack of reason or reasonable analysis the 4thCCOAs held:

Plaintiffs argue that DACA’s rescission was arbitrary and capricious because the Department of Homeland Security failed to give a reasoned explanation for the change in policy, particularly given the significant reliance interests involved. We agree.

Fifth Circuit’s ruling was based in part on its determination that the DAPA policy likely ran counter to the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their
children’s immigration status.” Texas, 809 F.3d at 179.

Further, as the Fifth Circuit explained in reaching its conclusion, “DACA and DAPA are not identical.” Texas, 809 F.3d at 174.



The 4thCCOAs also held that DHS had failed to give any reasoned explanation for the abrupt change in DACA policy, therefore making the Trump Administration’s DACA recession “arbitrary and capricious under the APA” ...yes I know that’s redundant but it’s how the 4thCCOAs opted to write their ruling.


“reasoned analysis” had supported implementation of DACA, yet the department “changed course without any explanation for why that analysis was faulty...Nor did the department adequately account for the reliance interests that would be affected by its decision,” Diaz wrote. “Hundreds of thousands of people had structured their lives on the availability of deferred action during the over five years between the implementation of DACA and the decision to rescind.”


The Trump Administration argued, similar to their 9thCCOAs argument that former President Obama’s 2012 DACA Executive Order was unlawful. Therefore the Trump Administration could “lawfully” rescind DACA. The 4thCCOAs held in their ruling that the Trump Administration’s decision to end the program, the documents used to back up those claims did not “identify any statutory provision with which the DACA policy conflicts.”

As previously explained (in somewhat exuberant and wordy detail) because the District Court and now the 4thCCOAs found the Trump Administration’s DACA recession violated the APA...the viability of the Plaintiffs constitutional claims, specifically the fifth amendment become moot.

Because we have determined that DACA’s rescission violates the APA, we need go no further. See, e.g., Veasey v. Abbott, 830 F.3d 216, 265 (5th Cir. 2016).


Let’s not forget about one of the most offensive SOTU speeches filled with Donald J Trump’s racial animus... no really why do Donald Trump & Stephen Miller hate people of color so much?


And Saturday class is now for me, I’m eyeballs deep in to FEC & NY DFS and NRA filings but I also promised my family I’d unplug from the inter least for a few hours. Because I really need to go buy myself some more bon bons and steam clean my chaise so I can binge watch Orpah.../snort

ps I really don’t care about my typos, I’m not paid a single penny nor do I have an editor if you’re going to chide me over my typos, that actually says WAY more about you then me...-SpicyFiles Out (for now)

pps didn’t I warn you about Stephen Miller’s Immigration Plan? Zero mention of DACA. Why? Because Donald Trump has a goddamn White Nationalist drafting his Immigration Policy. See Trump’s Immigration Announcement...again not a single word or mention of DACA


I tapped out at 1:19 seconds of that video...if you want to read more about Trump’s Immigration Bullshit...see this recent entry. See the July 2018 Foreign Worker Visaa Trump applied for. Or the December 2018 government shutdown entry where I dragged him, he could have had $25M for his stupid fucking wall while protecting DACA but that Orange Shit-Gibbon is too dumb to want compromise.







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  • NS Bundy: May 19, 2019

    Trump is cruel and it is important to recognize that evil exists – people do bad things to hurt people they don’t even know. The need to control someone is the need to make someone suffer. Patriarchy is a need to control – they lost the narrative over gender & gestation. We have to fight for the power to govern climate changes, healthcare, eprivacy, tariffs, NATO and outer space etc. Fight FOR the good life ahead.

  • Beth: May 19, 2019

    Thank you Spicy. Miss you on Twitter, but will follow you right here. You are the breath of fresh air needed so terribly in the country today.

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