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Dara Lind at Vox breaks down the complex chain of events regarding DACA and its legal fate. Today, Judge Andrew Hanen of Texas, known as the Joe Arpaio of the federal judiciary, hears a case brought to him by Texas Attorney General Ken Paxton.
Lind’s article is excerpted below and available online here:
For several months, the Deferred Action for Childhood Arrivals (DACA) program has quietly shambled along in a zombie-like state.
The Trump administration had announced in September 2017 that it was sunsetting the program, which had temporarily protected from deportation young adult unauthorized immigrants who came to the US as children.
But then this January, a federal court partially blocked the administration’s move, allowing some 700,000 unauthorized immigrants who were already protected under the program to renew their applications.
That limbo may come to an abrupt end in the next few weeks. A couple of court cases could determine whether DACA could be reanimated entirely — or killed for good.
On Friday, a federal judge in DC ruled to undo the administration’s decision to end DACA — and decreed that unless the Trump administration could get the DC Circuit Court to put a hold on his decision, it would have to start accepting new applications for protection under DACA on August 23.
But while the clock ticks in DC, a federal judge in Texas will hear a case trying to shut down DACA entirely — and the question isn’t whether the judge, known as an immigration hawk, will rule in favor of killing DACA, but when he’ll do it.
At some point, the government is almost certainly going to be under simultaneous mutually contradictory orders from two federal judges: to continue processing applications under DACA, and to stop doing just that.
The lawsuit against DACA is being heard by Judge Andrew Hanen in the Southern District of Texas. He’s generally known as an immigration hawk, and made his feelings about the unconstitutionality of DACA pretty well-known when he ruled against an attempted expansion of the program during President Barack Obama’s second term.
On Wednesday afternoon, Hanen will hear arguments over whether to issue a nationwide injunction of his own, which would stop the Trump administration from continuing to implement DACA in any way. Immigration experts expect him to issue that injunction.
As a general rule, when different judges in different areas of the country have issued conflicting opinions in a case, it becomes more likely that the Supreme Court will take up the case to sort out the inconsistency. But it usually does so at its own deliberate pace — which would likely result in the Court hearing one or more of the DACA cases in spring 2019, for a ruling that June.
But there’s a difference between conflicting opinions and conflicting orders about what the government is supposed to do right now.
It’s extremely likely that the Supreme Court will be asked to issue an emergency stay on Hanen’s ruling (unless the Fifth Circuit Court of Appeals does it for them) to prevent one anti-DACA ruling from trumping three pro-DACA ones.
Bates’s ruling aside, very few people think that DACA will ultimately survive its court battle. By the time the Supreme Court hears the full case, it will have a five-member conservative majority. And the worst-case scenario for the Trump administration is that the Supreme Court will give it a do-over on ending DACA.
But the difference between a work permit that expires after the next presidential election and one that expires in a matter of weeks is enormous. And with the court battle about to enter completely uncharted territory, no one can tell confused DACA recipients that they know exactly what the right decision should be.