There’s a lawlessness rampant in the land, but it isn’t emanating from the Trump administration.
The source is 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 Trump and one for everyone else.
In this dispensation, other presidents, especially Democratic presidents, get a pen and a phone. Trump 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. US 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’d 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 re-versing it via his own pen and phone.
Prosecutorial discretion must work both ways, or the law is a ratchet always working against immigration enforcement.