Department of Justice, Immigration, Justice

State Attorneys General Continue To Fight Trump At Every Turn

These guys are bringing their 2L Admin Law casebooks to work now.

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Senate Minority Leader Charles Schumer and House Minority Leader Nancy Pelosi are having dinner with Donald Trump. It’s a normal, anodyne bipartisan step that wouldn’t even be news in any normal administration in the history of the Republic.

State atorneys general, however, continue to treat President Trump like an abnormal crazy person who wields the powers of his office with the legal acumen of person who couldn’t sit through an entire YouTube clip on how a bill becomes a law.

We’re now up to four states that have sued to stop Trump from rescinding DACA, the Deferred Action for Childhood Arrivals program. California, Maine, Maryland, and Minnesota now claim that Trump’s executive decision violates the Fifth Amendment’s guarantees for equal protection and due process.

The reliance interests are strong for undocumented children brought here by their parents. There is a whole category of people who came out of the shadows to apply for DACA, who now may have just outed themselves for the benefit of ICE or whatever Trump wants to call his promised “deportation force.” Then there is the category of people who would have applied for DACA, but were too young to do so. And then there are the people who haven’t applied for DACA yet, but have done nothing wrong and now once again have no path to legally stay in the country.

But those are just the obvious problems with the president’s decision to rescind the program. Those are just the arguments that Schumer or Pelosi or, you know, any person not fully blinded by racial animosity could see coming a mile away.

The special sauce from the State AGs is this. From the ABA Journal:

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Like the other states’ lawsuit, the California lawsuit argues that the federal government violated the Administrative Procedure Act by canceling DACA without the notice and comment period typically required for agency actions, and was arbitrary, capricious and unlawful.

See, that’s why you go to law school right there. Admin Law! Notice-and-comment FAIL, Donny-boy. The general prohibition on “arbitrary and capricious” laws would seem to be invented to specifically respond to the Trump administration if history didn’t teach us better. The man’s entire political philosophy is arbitrary and capricious, in the lay sense of the phrase, and the legal work of his team is so consistently shoddy that the legal term of art seems to apply as well. As he attempts to enact more of his agenda (it still could happen), I’d expect to see that phrase showing up more and more.

Legal luminaries are not giving Trump enough space to use his nearly sacrosanct pardon power without a courtroom battle. The man cannot send out a Tweet without initiating legal action from some state or well-funded watchdog group. Lawyers who don’t even work for public interest groups — men and women who normally expect to be paid at least a courtesy finder’s fee for recommending a decent movie to rent — are willing to help with this work, for free.

And we know the Ninth Circuit is game for ALL OF IT.

Is the Supreme Court really going to spend the next four years serving as Trump’s unbreakable line of defense? Are John Roberts and Anthony Kennedy really going to go down as “Trump’s Wall,” defending the authority of the executive branch from state challenge after state challenge? Maybe. Maybe they do view the Third Branch as less of a “check” on executive power, and more like an executive janitor that is there to wipe up any “accidents” but not get in the way when the man in charge blows his colon all over the Constitution. Maybe they at least think that’s the Article III job when a Republican is in office, anyway.

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But Supreme Court will have to be prepared to spend a lot of time scrubbing because these state AGs are calling the administration out on all of its mistakes. They are not a thorn in Trump’s side, but the stuff of Trump’s nightmares.

… them and James Comey.

4 more states sue Trump administration for canceling DACA [ABA Journal]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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