Judge Calls Immigration Efforts `Unacceptable'

separated from their parents called the government efforts unacceptable. Earlier in the weeks, Senate Judiciary Committee Chairman Chuck Grassley also criticized the administration's policies. However, like many well intentioned policies UH, these UH were on there were unintended consequences. And in another federal courtroom on Friday, on the opposite side of the country, a judge upheld his order that the DOCCA program should be fully restored, giving the administration twenty days

to appeal. Joining me is David Beer, immigration policy analyst at the Cato Institute. David turning to the federal court room in d C. Judge John Bates gave the Trump administration a second chance to show him there was a legitimate reason to rescind DOCCA. Tell us what he asked

the administration and what the administration provided. Well, when the administration first rescinded DOCCA for the Dreamers, who immigrants who entered the United States as children, Uh, they did not explain why they believed that that was a proper decision

for the government to be taking. And so what the court found was that this decision was arbitrary and capricius did not have a basis in law, and the judge required the administration to reissue that memo rescinding that policy or provide the court with a valid legal reasons why

it believed that that policy was unlawful. Uh, the government really failed to do that, And the decision um from the judge really lays out in detail why the court felt that the Department of Homeland Security has not shown why they are taking this action. So the judge didn't say that the DHS secretary didn't have authority to rescind

the program. So if the Trump administration, which is expected to appeal, can come up with a better explanation, with a good explanation, is it possible that the judge will rescind the order or that the appeals Court will Well, at this point, really the Appeals Court is going to be looking at whether or not the judge has abused his discretion in this case too basically enjoin the memos that the Department of Homeland Security has put out, so that they're really going to be ruling on whether or

not uh DHS has provided the courts with a legitimate reason so they could overturn it. But at this point, you know, providing new rationales is not going to help the administration. It's going to be decided based on what they've already put out there. And what's your legal opinion about what they've put out there? Do you think you

can sustain an appeal? Well, I would be surprised that if this went to the Supreme Court, the Supreme Court did not uphold the determinations by the Department of Homeland Security. I mean, when this policy was rolled out, was done without going through the regulatory process. Uh. This has always been an agency uh you know, the types of decisions that agencies have routinely taken based on their own discretion

without judicial review. And it's somewhat surprising that the the administration has so far been unable to convince any court across the country that they actually have the authority to do this without providing a detailed explanation of their decision. And part of the reason why they've had so much trouble is that they've tried to say that they're not doing this for policy reasons. It's not that they don't want DOCCA to exist. It's that they believe that DOCCA

is illegal. And that is what the judge continuously came back to and said, you never explained why you think it's illegal, and your justifications for why you think so don't hold any water. So why not tell us the real reasons that you're doing that? And they failed, again, uh to provide the real reasons for them taking this action. There have been previous court rulings in California and New York. There's another case pending in Texas which may find the

program to be unconstitutional. The Ninth Circuit is going to issue a decision. How do all these cases fit together? It's really all of these cases so far have pointed in the same direction that, uh, you know, really the administration has done a very poor job in how they have justified the decision to rescind DOCCA. And of course you uh may know that the court in Texas is

also looking at this. This is the same court that's struck down the Obama administration's expansion of a DOCTA program to parents of of of American born children, and UH, he is likely to strike down DOCTA based on the reasoning that he provided back in and so we could have conflict thing decisions both in d C and Texas and California, one requiring the administration to continue DAKA and the other ones UH, the other one in Texas UH

striking it down. So that will lead to the Supreme Court intervening and deciding the issue once and for all. And you think the Supreme Court will uphold the government's position. I expect that the Supreme Court will side with the administration on this issue, despite the fact that more lower

courts have gone against the admitted the administration. That's right because well, I think the reason is that, as I explained before, many agency actions UH similar to this one have been taken in the past and have been allowed to stand, particularly decisions about whether or not to um issue certain benefits on a discretionary basis or within certain administrative acts, such as creating a program for people who do not want to remove David, we run out of time.

It's always great to have you on. That's David Beer, immigration policy analyst at the Cato Institute. Four cities have had enough of executive actions that are slowly killing Obamacare, and they're letting the Trump administration know that with a lawsuit. Just last week, the Trump administration announced that it would allow insurers to offer short term healthcare plan that don't

meet the Affordable Care Acts minimum coverage requirements. Health and Human Services Secretary Alex Azar explained the change in an interview with Bloomberg. These can be fifty to eighty percent cheaper than Obamacare exchange plans, So this is a really important new option for millions of Americans. Joining me is Timothy Johns, a professor at Washington and Lee University School

of Law. Tim the City's claimed that the Trump administration is trying to sabotage Obamacare, and they explain all this in a nearly one fifty page complaint. Give us some of the highlights of the administration's actions they're complaining about. Well.

The complaint focuses on two different kinds of actions. One is a rule that was put out earlier this year to govern the sale of of insurance policies for for and the complaints singles out quite a number of things that are included in that rule that are reducing the regulation of health insurers UH and reducing access by consumers to information about health insurance and generally will probably have

the effect of suppressing enrollment. Beyond that, the complaint also and the complaint alleges that those actions violate the Administrative Procedures Act, which governs the UM the promulgation of federal regulations, in that the rules are arbitrary and capricious and also in violation of federal law. The second UH issue raised by the complaint, which is a bigger issue UM, which is the claim that the administration generally is violating what

is called to take care clause of the Constitution. The United States Constitution U requires the president to take care that the laws are faithfully executed UM, and President Trump has repeatedly said, and the complaint listed pages of his tweets and statements that he is trying to kill the Affordable Care Act, which is a law that was duly enacted by Congress and which Congress refused to repeal last

year when it had the chance. UM and so it lifts a number of action is taken by the Trump administration, including the new Short Term Rule UM and other rules that are driving up the cost of health insurance for people with pre existing conditions UM and undermining the market for health insurance coverage. So Tim has to take care. Clause of the Constitution gotten much play, so to speak, in the federal courts. There haven't been a lot of

cases raising the issue in this way. There are Supreme Court cases and appellate court cases that are cited in the complaint that make it clear that the president, the federal government does not have the option of simply ignoring federal law, of simply refusing to enforce federal law. But

what's going on here is really unprecedented. Uh. It's it's hard to think of another instance where a pres evident has so openly and vociferously and uh and actively in the actions that the administration has taken refuse to implement a federal law and done everything that it could do to undermine that a federal law that was adopted by Congress that as we all remember from from Civics in

high school. UM, Congress adopts the law and the President executes and enforces the law, and this president is just refusing to do that with the Affordable Care Act. So the Trump administration hasn't filed a response yet, But can

you anticipate what the response might be? Uh? Yeah, I mean I would guess that they will probably start by trying to raise jurisdictional issues, challenging whether the cities, which are in fact heavily burdened by the administration's actions, have the right to sue um and then I guess will probably also claim that that to take care claus is unenforceable,

and so we'll see where they go. They do have some time to respond, although I'm not privy to the what the planeffs planned to do, but if they move for a preliminary injunction, then maybe things will move more quickly. Now, is this suit an uphill battle for the cities or which side has the advantage here? In your mind? Well, because it is a claim that is going to be somewhat novel, I think it will be somewhat of an

uphill battle. On the other hand, as you pointed out, this is a very long complaint that points out in great detail many actions the administration has taken to undermine the Affordable Care Act um and uh. And so I think that there is certainly a very good possibility that it will succeed in some of those claims. Least, the Justice Department announced that it would not defend Obamacare against a lawsuit that was brought by the Attorney's General of

Texas and nineteen other Republican led states. How does that fit in with the scenario that this lawsuit points out? Well, I think the lawsuit specifically mentions that action is one of the actions that the Trump administration has been taking to sabotage the the Affordable Care Act um. And yes,

that's very concerning. Uh that the administration they they did not say that they would not defend the entire law, but they said specifically that they would not defend the parts of the law that protect people with pre existing conditions um and make sure that they get affordable health coverage.

So it's it's kind of ironic that a provision of the law that is supported by the vast majority of the American republic of public, including a majority of Republicans in recent polls, is the one provision that this administration has singled out to say that they will refuse to enforce. Just about a minute here, we're seeing Trump's words and specifically his tweets used in several lawsuits. Now, how have courts responded in general to the use of the tweets

and lawsuits. Well, that's that's a developing issue. But in some of the cases involving immigration law, at least some of the courts have found the tweets to be significant evidence of the Trump administration's position. And in a case like this, where the claim is that the administration is explicitly not fulfilling its obligation to implement and enforce the law, I think the tweets are very powerful evidence that that's

exactly what's going on. And what's the what do you what do you put the chances at of the states or the city's rather being able to get an injunction here? I'm I'm sorry, Okay, forget that's all right. We run out of time anyway. Thank you so much. That's Timothy Josh, professor at Washington and Lee University School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and

on Bloomberg dot com. Slash Podcast. I'm June Basso. This is Bloomberg