The federal judge who earlier this week ordered the reversal of President Donald Trump’s decision to end the program protecting so-called Dreamers said in a new ruling Friday that it is "plausible" that Trump shut down the program for racial reasons.
"These allegations raise a plausible inference that racial animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA," U.S. District Court Judge William Alsup wrote, referring to the Obama-era Deferred Action for Childhood Arrivals program bestowing quasi-legal status and work permits on undocumented immigrants who entered the U.S. as children.
Alsup noted that two of the suits filed challenging the decision the Trump administration announced in September to wind-down the program cited Trump’s anti-Mexican and anti-Latino rhetoric during the 2016 campaign, including his description of Mexicans as rapists and of immigrants coming across the southern border as "animals."
"Circumstantial evidence of including statements by a decisionmaker, may be considered in evaluating whether government action was motivated by a discriminatory purpose," wrote Alsup, an appointee of President Bill Clinton. "These statements were not about the rescission (which came later) but they still have relevance to show racial animus against people south of our border."
The judge acknowledged that use of Trump’s campaign trail statements to infer his intent as president has been controversial in legal circles.
Some judges used Trump’s campaign promises of a "Muslim ban" to conclude that his so-called "travel ban" policy was driven by anti-Muslim bias. However, other judges have warned that it is a mistake to use often-exaggerated statements from candidates to draw conclusions about official acts taken by a president once in office.
"Such admissibility can readily lead to mischief in challenging the policies of a new administration. We should proceed with caution and give wide berth to the democratic process," Alsup wrote. "Yet are clear cut indications of racial prejudice on the campaign trail to be forgotten altogether?"
The Trump administration has argued that the president’s motives are irrelevant, in part because the decision was made by then-acting Secretary of Homeland Security Elaine Duke. However, the judge said at this stage he was required to accept the challengers’ claims that she was acting at Trump’s direction.
Alsup’s analysis came Friday in connection with five lawsuits he is handling over the Trump administration’s cancellation of DACA. The bulk of his latest, 14-page order was technical in nature, allowing certain claims to proceed while dismissing others.
On Tuesday, Alsup ruled that those challenging the wind-down of the program are likely to prevail and were therefore entitled to an injunction requiring the administration to resume accepting DACA renewals. The judge said Attorney General Jeff Sessions’ claim that the program was an illegal overreach was "based on a flawed legal premise."
Trump trashed the decision on Twitter, although he broke with his past practice by refraining a direct public attack on the judge.
"It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts," Trump said.
Alsup does not sit on the 9th Circuit Court of Appeals, but he is in that geographic region. The Justice Department is expected to appeal Alsup’s rulings to the 9th Circuit and, possibly, to the Supreme Court. Government lawyers are also expected to seek a stay that would lift the administration’s obligation to resume DACA renewals while the case goes forward.
The Justice Department spokesman declined to comment on the latest ruling.
However, earlier Friday, the Department of Homeland Security’s U.S. Citizenship and Immigration Services division said it was still working on implementing Alsup’s injunction.
"USCIS is reviewing the court’s decision to make sure we fully comply with the order," a spokesman sauid. "We will be making more information available to the public about next steps in the coming days."