Outside the Beltway

Federal Judge Declines To Grant Texas Request To End DACA, For Now

A Federal Judge in Texas has declined to grant a request to bring the DACA program to an end, but its days appear to be numbered unless Congress acts.

Doug Mataconis · Saturday, September 1, 2018 · 1 comment

In a somewhat surprising move, a Federal Judge in Texas has dealt a setback to efforts by the State of Texas and several other states, along with the Federal Government, to have the Deferred Action for Childhood Arrivals program declared unconstitutional, although he did leave a rather obvious message that this would likely be the ultimate result of the case:

WASHINGTON — A federal judge in Texas declined on Friday to halt an Obama-era program that protects young undocumented immigrants from deportation, handing a temporary victory to activists who are waging a legal fight against the Trump administration to save it.

The judge, Andrew S. Hanen of the Federal District Court in Houston, said the program, known as Deferred Action for Childhood Arrivals, had been relied upon by hundreds of thousands of immigrants since it was established almost six years ago, and should not be abruptly ended.

The ruling means that young immigrants who were brought illegally to the United States as small children can continue to apply for the program, which shields them from immediate deportation and provides a permit to work legally in the United States.

“It’s a huge sigh of relief,” said Marielena Hincapié, the executive director of the National Immigration Law Center. “This is a huge loss for Trump and the Department of Justice, who clearly want to end the program.”

Mr. Trump announced a year ago an end to the DACA program, calling it an illegal use of executive power by his predecessor, former President Barack Obama. Attorney General Jeff Sessions at the time called DACA an “unfair system” that had victimized millions of Americans by allowing “illegal aliens” to take their jobs.

But Mr. Trump’s effort to end the program was blocked by several other federal judges, who have temporarily required the administration to allow qualified undocumented immigrants to renew their protected status under the DACA program.

The State of Texas and eight other states filed a separate lawsuit seeking to declare the DACA program illegal and seeking an injunction to stop it, but Judge Hanen refused to do so.

The Texas judge, who in 2015 blocked a similar effort by Mr. Obama that would have added protections for the undocumented parents of citizens and other lawful residents, compared the idea of ending the DACA program to an attempt to “unscramble” an egg.

“Here, the egg has been scrambled,” Judge Hanen wrote. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”

Chris Geidner at Buzzfeed has more:

A long-awaited ruling from a conservative judge over the future of the Deferred Action for Childhood Arrivals program did not go as Texas had hoped: The judge refused to halt DACA on Friday. The ruling, however, also allows the case to proceed quickly toward the Supreme Court.

US District Judge Andrew Hanen on Friday denied the request from Texas and a handful of other states to immediately enjoin enforcement of DACA — but is giving the parties 21 days to appeal his ruling.

DACA — a program started under the Obama administration — provides work permits and protection from deportation for two years for immigrants who came to the US without documentation as children. Its future has been an ongoing dispute in the Trump administration, which eventually announced it was ending the program. Since then, however, several federal courts have ordered the administration to allow it to continue. The Texas-led lawsuit was an attempt to get a court ruling that the program itself is illegal.

In the order allowing an immediate appeal of his ruling, Hanen appeared to reflect the significance of and conflicting rulings on the matter.

“[T]he issues covered herein are of major import to a large segment of this country, and all parties are in need of and desire a definitive answer as soon as they can get one,” he wrote.

Hanen previously ruled against the legality of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program — a ruling upheld by a federal appeals court that was left in place when the Supreme Court split 4-4 on the issue.

As to DACA, Hanen concluded Friday that the program is likely illegal, but he rejected the states’ request for a preliminary injunction because they waited so long to bring the challenge to the program.

“Unlike in [the DAPA case], the plaintiff states ask this court to enjoin a program that has been ongoing for more than six years,” Hanen wrote. “Instead of maintaining the status quo, they want this court to halt operation of DACA.”

Lawyers for Texas and the other states challenging DACA were hopeful that Hanen would issue a ruling similar to his DAPA ruling — ordering a halt to DACA’s enforcement. Advocates of the program were concerned that the hope of the states’ lawyers was justified, and they braced for a ruling against DACA.

Such a ruling, however, would have set up a conflict with other court orders halting the Trump administration’s move to end DACA. As such, the Justice Department argued that if Hanen wanted to strike down DACA, he should issue a stay of his ruling along with any injunction, so as to avoid any “inconsistent obligations.”

This ruling, of course, does not come in a legal vacuum, and no doubt in part because of that fact that Judge Hanen declined to issue the preliminary injunction that Texas and its sister states were asking for. It has been just under a year now since President Trump issued his initial Executive Order that purported to end the program as of March of this year. Before that could happen, though, a number of Federal Court intervened to keep the program in place. In January, a District Court Judge in San Francisco ruled that the Administration’s efforts to repeal the program violated the law and issued an injunction barring the program from going into effect. That ruling was followed roughly a month later by a ruling from a second Federal Judge in Maryland who issued a similar ruling on much the same grounds as his colleague in San Francisco. In April, a third Federal Judge in Washington, D.C. issued a similar ruling keeping the program in place and followed that ruling up with a permanent injunction that was handed down just last month. In July, meanwhile, a Federal Judge in New York City denied a motion seeking to dismiss a similar lawsuit against the Trump Administration order in a ruling that cited many of the same grounds as the previous two orders and which also cited in support of its conclusions rhetoric from the President both in his speeches and in his Tweets. Finally, in what many saw as a major setback for the Administration, the Supreme Court declined to disturb the injunction in the San Francisco case, meaning that the government will be forced to go through the Ninth Circuit to appeal that case. So far, there has been no other action in any of these cases and each of the injunctions remains in place. It appears to be partly because of the existence of these Court orders from around the country that Judge Hanen declined to issue the injunction that Texas and the other parties to this lawsuit are seeking.

The case before Judge Hanen, of course, is entirely different from those noted above. Where those lawsuits seek to block the Administration’s to bring the DACA program to an end, this lawsuit is ultimately seeking to have the entire DACA program declared unconstitutional and illegal. In support of that argument, they contend that DACA is illegal. The first argument should be a familiar one at this point since it has been raised in connection with challenges to executive action taken by both President Obama and President Trump, namely that the action itself failed to comply with the Administrative Procedure Act, a Federal law that governs how new regulations adopted by agencies of the Executive Branch must be adopted. The lawsuit also alleges that DACA violates existing immigration laws, that it exceeded the discretionary enforcement authority that existing law grants to the Executive Branch, that it violates principles of separation of powers between the Legislative and Executive Branches by improperly taking action that only Congress can take in connection with immigration law and that the states have been injured by these actions due to the costs they have been forced to incur as a result of the DACA program and other factors.

Given the fact that Judge Hanen appears to be sympathetic to these arguments, it’s worthwhile to wonder, as Jazz Shaw does at Hot Air, why he did not issue the preliminary injunction that was sought in this case. The main answer for this question can be found in the text of the opinion, which I’ve embedded below Essentially, Judge Hanen notes that entry of a preliminary injunction at this time when there are several orders to the contrary pending before other courts would only serve to increase the confusion that likely exists among beneficiaries regarding the status of the program as well as the potential damage that could be suffered by those beneficiaries if it turned out that the state challenge is ultimately struck down. In any case, Hanen also places the case on hold for 21 days to allow either party to decide if they want to appeal the denial of the preliminary injunction, a decision that would obviously be made by the states and by the Trump Administration, which joined the case earlier this year. At least initially, such an appeal would go to the Fifth Circuit Court of Appeals, which has been known to be one of the more conservative in the country. However, it could also end up before the United States Supreme Court before the issue of an injunction is fully resolved. In the meantime, the program will remain intact.

Of course, as has been noted numerous times in the past, all of this litigation could be brought to an end quickly by Congressional action on legislation that would legalize the DACA program, and protect the beneficiaries and potentially millions of others. As we have seen, though, that is far easier said than done. In any case, DACA lives on for now but, barring Congressional action, it has only a limited amount of time left.

Texas v. United States Et Al Order by Doug Mataconis on Scribd