President Trump’s tweets and campaign statements were raised in a federal appeals court Tuesday as a three-judge panel gathered to hear oral arguments in a case challenging the administration’s decision to end an Obama-era program protecting young immigrants from the threat of deportation.
During the one-hour argument before the 9th U.S. Circuit Court of Appeals, Judge John Owens noted that the president has made many comments about immigrants that could be applicable to the case, the plaintiffs of which claim the Trump administration acted unlawfully when it attempted to rescind the Deferred Action for Childhood Arrivals program.
“He has said all kinds of things that could be relevant in this litigation,” Owens said. “I know we have to wait for the Supreme Court in the travel ban case maybe to understand how we can fully evaluate his statements on the equal protection [claim], I get that, but doesn’t the secretary answer ultimately to the president?”
Owen was referencing former acting Secretary of Homeland Security Elaine Duke, who issued a memorandum in September rescinding DACA.
The judges gathered in court in Pasadena, Calif., to consider whether the Trump administration’s attempt to end the 2012 program was lawful.
Attorney General Jeff Sessions announced in September the program, which protects immigrants brought to the U.S. illegally as children from the threat of deportation, would end as of March.
Congress attempted to enshrine DACA protections into law but were ultimately unsuccessful in reaching agreement on an immigration deal.
The president’s decision to rescind DACA brought a flood of lawsuits, and federal district court judges in California and New York both blocked the Trump administration’s efforts to end the program.
Since the judges issued their respective nationwide injunctions, the Trump administration has continued to accept DACA renewal applications.
In January, the Justice Department took the rare step of asking the Supreme Court to review the decision from the lower court in California, bypassing the 9th Circuit. But the justices declined to do so and instead urged the San Francisco-based appeals court to consider the case expeditiously.
It’s anticipated a challenge to Trump’s DACA rescission will be before the justices again in the coming months once cases proceed through the appeals courts.
The plaintiffs in the case against the Trump administration, which includes the Regents of the University of California, the state of California, and individual DACA beneficiaries, argue the efforts to end the Obama-era program were arbitrary and capricious and a violation of equal protection and due process rights.
The Trump administration, meanwhile, says it has the authority to end DACA and was justified in its decision to do so.
During arguments Tuesday, Mark Rosenbaum, who is representing individual DACA recipients in the case, told the judges that both before and after he took office, Trump referred to people from the countries where DACA recipients were immigrating from as “drug dealers, as druggies, as criminals, as bad individuals.”
Rosenbaum said these comments indicate the president was motivated, in part, by discriminatory animus.
“These DACA recipients, they’re not high priority individuals. They’re not doing anything that would indicate that they should somehow go to the top of the list,” Rosenbaum said, referencing those ordered for deportation. “[T]hese individuals from these countries are being treated as bargaining chips for other policies. That’s not going to happen with Norwegians. That’s not going to happen with Western Europeans.”
Owens, who was appointed to the appeals court by former President Barack Obama, noted that the courts are in uncharted territory when it comes to weighing whether Trump’s tweets and campaign statements can be used to determine the motivation behind a specific policy.
“I don’t think we’ve ever had this situation before,” Owens said. “We’re kind of in new ground here.”
Judge Kim Wardlaw also questioned whether, when considering Trump’s tweets, it made a difference whether they were published before he became president or after. Wardlaw said that in some tweets, the president suggested he would support protections for Dreamers if Congress allocated money for his border wall.
Hashim Mooppan, a Justice Department lawyer who argued on behalf of the Trump administration, stressed that it was Duke who issued the memorandum rescinding DACA, and said the plaintiffs failed to show evidence of discriminatory intent.
“They haven’t cited any case that says you can impute to a Cabinet secretary invidious motives based on the statements of the President of the United States,” he said. “That’s especially true when the statements by the president aren’t about the policy in question and aren’t about racial animus.”
Owens noted that the travel ban case currently before the Supreme Court will likely help shed light on how much weight the courts can give to Trump’s tweets and campaign statements and questioned why the government needed the DACA case decided so swiftly given the high court’s pending decision.
The justices heard the travel ban case, which was also brought under Equal Protection claims, in April, and a decision is expected by the end of June.
“Why all of a sudden now do we have to decide this case?” Owens asked.
Mooppan said the Trump administration believes the court should act expeditiously, as the Supreme Court suggested it do.
“We’re being forced to maintain a policy that gives affirmative sanction to 700,000 illegal aliens in a policy that we think is illegal,” he said.
While cases involving Trump’s DACA rescission are currently weaving through the federal courts, another lawsuit challenging the legality of the program was filed in a federal district court in Texas.
Seven states filed the lawsuit this month and want an end to the 2012 Obama-created program.
