This is an opinion column. The thoughts expressed are those of the author.
A Texas Federal Judge Rules DACA Was Created Unlawfully by Obama Administration.
Shipwreckedcrew 7/17/2021 9:01 AM
Figure 1Sen. Joe Manchin, Image: Pixabay
On Friday a federal District Court Judge in Texas has issued a long-awaited ruling finding that the “Deferred Action for Childhood Arrivals” program – DACA – was illegally created, and imposed a nationwide injunction prohibiting the Biden Administration from doing anything more than accepting applications for the program until the litigation is complete.
The DACA policy – not a federal law – was adopted by the Obama Administration after its efforts at “comprehensive immigration reform” failed during the Obama’s time as President. The policy protects from deportation adults who were brought to the United States illegally as children by their parents.
The litigation history of DACA is somewhat convoluted. After winning election in 2016, President Trump’s Department of Homeland security issued a memorandum that it would be winding down the DACA program.
Immigrant rights groups filed suit attempting to block the Trump Administration plan. The court decisions generally supported the Trump Administration, finding that the process by which the Obama Administrations created the program was contrary to federal law as it violated existing immigration statutes that had been passed by Congress.
However, when the case reached the Supreme Court in 2020, Chief Justice Roberts joined with the four Court liberals and held that the Trump Administration itself had not followed necessary regulatory procedures in how it went about rescinding the program. The Court acknowledged that the DACA program as created by the Obama Administration was illegal, but because millions of individuals had registered under DACA – thereby identifying themselves as deportable aliens, they were entitled to have the Trump Administration follow proper regulatory procedures in winding down the program. The Supreme Court told the Trump Administration – in so many words – “Start Over.” Not surprisingly, the Biden Administration halted that process after coming into power.
Friday’s decision by federal Judge Andrew Hanen, a George W. Bush appointee, altered the legal landscape again by ruling that the original Obama Administration program was unlawfully created. He did so in a three-year-old lawsuit that had been brought by nine Attorneys General in Republican-led states, making the Biden Administration powerless to halt the litigation. He issued injunctive relief halting the Biden Administration from continuing to make use of the program by declaring invalid the original 2012 Memorandum of the Obama Administration that created the DACA program.
Second, Judge Hanen temporarily stayed application of the “vacatur” to those who have already been given DACA status, meaning they are not immediately subject to deportation.
Third, Judge Hanen blocked the Department of Homeland Security from approving any new applications for DACA status – although it can continue to receive such applications.
This ruling freezes the DACA program in its tracks. Current status holders are not impacted – yet. No new applicants can be provided DACA status, although they can submit applications to DHS.
The next step for the defendants will be to appeal to the Fifth Circuit Court of Appeals, and seek injunctive relief from that Court to prevent Judge Hanen’s Order from going into effect until after the appeals are resolved.
It was the same Fifth Circuit that affirmed the Trump DHS memorandum rescinding DACA – a decision later reversed by the Supreme Court. But the focus in the Supreme Court was on the procedural irregularities in the Trump Administration’s rescinding of the program, not the program itself.
Judge Hanen’s decision is not burdened by the Trump Administration’s failures, and his reasoning seems to be aimed at the same legal reasoning used by the Fifth Circuit in the earlier litigation finding the program to have been unlawfully created by the Obama Administration. It is hard to comprehend how the Fifth Circuit could reach the opposite conclusion now.
This leaves two more players to consider – the Supreme Court and Congress.
Assuming that CJ Roberts will again look for a way to keep the DACA program on “life support” while Congress and the Administration work on a political solution, he will only have three court liberals to join him. That leaves him one short, with Justice Amy Coney Barrett now on the Court in place of the late Justice Ginsburg.
In last year’s decision, Justice Kavanaugh disagreed with Justice Roberts’ opinion with regard to the process followed by the Trump Administration. The problem, however, is that he also stated in his dissenting opinion that a political solution to the problem needed to be found:
The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come. In contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants and the Nation’s immigration system.
It’s quite possible that the Chief Justice could convince Kavanaugh to assist him again in saving the program until a political agreement is reached on how to deal with the status of the DACA recipients.
That leaves Congress. The reality is that the Democrats control the House, and with Joe Manchin’s cooperation they could control the Senate. Manchin has so far resisted the calls by liberal democrat interest groups to eliminate the legislative filibuster in order to allow Democrat legislation to pass with just 51 votes.
Manchin has said for months that he believes the two parties must work together to produce legislation, and he would not vote to end the legislative filibuster. But every time the GOP blocks Democrat legislation, the pressure builds on Manchin.
The GOP may need to engage in a bit of a “strategic retreat” on the issue of current DACA recipients. Judge Hanen’s decision leaves them protected for now. Reaching an agreement by providing 10 or more GOP votes in the Senate on legislation that provides a path to citizenship for DACA – but not for all illegal aliens – would give Manchin some breathing room.
Whether Democrats would agree to adjust only DACA recipients, and not the larger class of all illegal aliens in the United States, remains to be seen.
Shipwreckedcrew spent more than 22 years as an Assistant United States Attorney working in two different offices in the Western United States, beginning in 1992 at the end of the Administration of the first President Bush, and departing in 2013 during the second term of Barack Obama. He is a veteran of more than 40 federal criminal jury trials taken to verdict -- as lead counsel in all but the very first one -- and has appeared more than 15 times before Ninth Circuit Court of Appeals. He has been in private practice since 2013. He is a regular contributor to Human events, he has been a regular presence on Twitter since 2018, and was a contributor at Red State from May 2020 to July 2021. He writes primarily on legal issues and politics, and is a nationally recognized expert in conservative media in the areas of federal criminal matters and decisions from the Supreme Court. You can also find his work at Shipwreckedcrew@substack.com. follow him on Twitter: @shipwreckedcrew
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