By SUDHIN THANAWALA, SAN FRANCISCO (AP) — Federal appeals court judges appeared skeptical Tuesday of the Trump administration’s claim that courts don’t have the power to review the president’s decision to end a program that shields young immigrants from deportation.
Lawyers for both sides spent more than an hour arguing their cases about the Deferred Action for Childhood Arrivals program and answering questions from three judges of the 9th U.S. Circuit Court of Appeals in Pasadena, California.
It’s the first time a federal appeals court has heard arguments on the issue. About 40 DACA supporters gathered outside the courthouse, carrying signs that said “Immigrant rights are human rights” and “Our strength stems from our roots.”
Judges focused on the administration’s rationale for ending the program and whether they had authority to intervene rather than exploring the merits of allowing hundreds of thousands of young immigrants to remain in the U.S. under DACA.
The Trump administration has said it moved to end the program last year because Texas and other states threatened to sue, raising the prospect of a chaotic end to DACA.
Deputy Assistant Attorney General Hashim Mooppan argued Tuesday that the administration’s decision could not be reviewed by courts, and he defended the move to end DACA against assertions that the decision was arbitrary and capricious.
“It’s a question of an agency saying, ‘We’re not going to have a policy that might well be illegal,’” Mooppan told the judges. “That is a perfectly rationale thing to do.”
The decision by Trump to end DACA prompted lawsuits across the nation, including one by the state of California.
A judge overseeing that suit and four others challenging DACA ruled against the administration and reinstated the program that was started by then-President Barack Obama.
The Trump administration now wants the 9th Circuit to throw out that ruling. It was not clear when the court would rule.
Ninth Circuit Judge Kim Wardlaw noted during the hearing that another appeals court had reviewed a similar Obama administration immigration policy.
Judge Jacqueline Nguyen questioned whether courts could intervene if they thought DACA was legal and disagreed with the administration’s position that it was unconstitutional.
DACA has protected some 700,000 people who were brought to the U.S. illegally as children or came with families that overstayed visas.
In January, U.S. District Judge William Alsup rejected the argument that Obama had exceeded his power in creating DACA and said the Trump administration failed to consider the disruption that ending the program would cause.
Wardlaw seemed to agree, saying the acting Homeland Security secretary did not give “any weight” to the fact that DACA was in effect and participants were using it.
Michael Mongan, deputy solicitor general at the California Department of Justice, told the judges the administration had to explain why it believed DACA was unlawful and faced the risk of being invalidated by a court.
“They’ve got to show their homework,” he said. “They haven’t done that here.”
Mooppan said the administration was under no obligation to consider the fact that people had come to rely on DACA.
Federal judges in New York and Washington, D.C., also have ruled against Trump on DACA.
The 2nd U.S. Circuit Court of Appeals is expected to hear arguments this summer on an appeal of the New York judge’s ruling.
The ultimate fate of DACA likely rests in the hands of the U.S. Supreme Court.
The administration has been critical of the 9th Circuit and took the unusual step of trying to sidestep the appeals court and have the California DACA cases heard directly by the Supreme Court.
The high court in February declined to do so.