Bates spoke near the end of a two-hour-long hearing Wednesday on two lawsuits seeking to overturn the administration’s ending of DACA in cases brought by the NAACP, Microsoft, Princeton University and a student.
The judge’s remarks came as White House officials told key Republican leaders that
President Trump is open to cutting a deal in an upcoming spending bill to protect the dreamers in exchange for border-wall funding.
In Washington on Wednesday, Bates appeared skeptical of Justice Department arguments that he dismiss the lawsuits because immigration authorities have discretion and do not need a court review when it comes to deciding to halt a “non-enforcement” policy.
Bates said, “You have been unsuccessful in three other courts with this argument, correct?”
“Yes, your honor,” Justice Department trial attorney Brinton Lucas replied.
A federal judge in San Francisco ruled in January that challengers to the administration probably were correct in their contention that ending DACA violated the Administrative Procedure Act, because it is arbitrary and capricious. A federal judge in Brooklyn reached a similar finding in February. Both judges issued injunctions.
Justice Department trial attorney Kathryn Davis told Bates that the administration ended the program because of the threat of legal challenges from a coalition of states led by Texas and a belief that the program created in the Obama administration could not be successfully defended in court.
Noting that explanation, Bates then asked why the change was presented to the government as a policy shift and not a legal conclusion by the Homeland Security and Justice departments. Bates questioned that legal conclusion given a 2014 Justice Department decision.
Noting the Washington court’s expertise in federal regulatory law, Bates sounded skeptical about whether issuing another nationwide injunction would be appropriate.
Rather, Bates said it might be better to strike down or vacate DHS’s attempt to end the program — which would oblige the government to continue to accept new DACA applications while the administration decides whether to try again to cancel DACA but with a fuller justification for the change in position.
Davis, the Justice attorney in court, opposed taking that course of action, saying it would create “undue chaos.”
Lindsay C. Harrison and Joseph M. Sellers, the plaintiff’s attorneys, said allowing new applications would not be disruptive because it would simply restore the status quo.