Judges skeptical they can't review Trump policy

Federal Appeals Court Will Soon Rule On Decision To End DACA

About 40 DACA supporters gathered outside the courthouse, carrying signs that said "Immigrant rights are human rights" and "Our strength stems from our roots".

The Senate confirmed two more of President Trump's appeals court nominees Tuesday, bringing his total to 21 circuit judges placed on the bench in his 16 months in office.

Authorities representing the Trump administration have their work cut out for them as they try to convince the 9th U.S. Circuit Court of Appeals that the White House has the authority to end 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.

Judge Jacqueline H. Nguyen noted that the federal judge in the District had given the government an out of sorts by providing the government time to offer more solid reasoning for the decision to wind down DACA, and asked whether it might take him up on it. Mooppan said officials had not yet made a decision but believed the legal reasoning for winding down DACA was sufficient.

Attorney General Jeff Sessions has said that the administration's fear of lawsuits helped spur DACA's end - especially what he said was "imminent litigation" from the state of Texas and others.

The judges on Tuesday seemed concerned about how the Trump administration made a decision to unwind the DACA program, whether the move had violated the equal protection rights of the recipients and if the court should take presidential tweets and statements in consideration as they considered the case.

The Trump administration now wants the 9th Circuit to throw out that ruling. It was not clear when the court would rule.

In January, a U.S. District Judge in San Francisco granted a request by California and other plaintiffs to prevent President Trump from ending DACA while their lawsuits play out in court.

A federal judge in San Francisco - weighing bids to save DACA from the states of California, Maine, Maryland and Minnesota; California's university system; and individual DACA recipients - had blocked the administration from ending the program, at least temporarily.

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.

DACA has protected some 700,000 people who were brought to the US illegally as children or came with families that overstayed visas. "They've got to explain" what they are doing, he said. "They haven't done that here".

"It is the government's position that DACA exceeds the scope of permissible, prosecutorial discretion", Mooppan said. Some outlets speculate the case will likely end up before the Supreme Court.

Federal judges in NY and Washington, D.C., also have ruled against the Trump administration on DACA. The 2nd U.S. Circuit Court of Appeals is expected to hear arguments this summer on an appeal of the NY judge's ruling.

He was referencing Andrew Oldham, a nominee to the 5th U.S. Circuit Court of Appeals, and Wendy Vitter, a nominee to the Eastern District of Louisiana.

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