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ICYMI: David Leopold: “On DAPA and DACA+, It’s Not Over”

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In Chief Justice Roberts’ mind, he’s a stickler for standing in the federal courts. But, today, he showed his politics trump his principles.”

Following today’s non-decision in US v. Texas by the US Supreme Court, David Leopold, an immigration attorney and former President of the American Immigration Lawyers Association, offers his take on the practical implications and the legal steps that remain. Despite Republican commentary that suggests otherwise, as Leopold notes, “The Supreme Court did not rule against DAPA and DACA+ today. It simply didn’t rule.”

The full piece “On DAPA and DACA+, It’s Not Over” is available at Medium and follows below. 

The Supreme Court did not rule against DAPA and DACA+ today. It simply didn’t rule. As a result, immigrant families deserve a renewed push to ensure that today’s partisan deadlock is not the final word on DAPA/DACA +.

The 4–4 split among the 8 justices in U.S. v Texas means, legally, that the Court did not make a decision. Anyone who imputes some constitutional principle from it, like Texas Attorney General Ken Paxton, Speaker Paul Ryan and many of their fellow Republicans, either doesn’t understand the Constitution and the Courts or is just willfully misleading everyone — or both.

As it stands procedurally, the ruling of the 5th Circuit Appeals Court remains in place and, at least for now — and for the remainder of the Obama administration — DAPA and DACA+ will not go forward.

This also means that the Republican lawsuit against the President’s immigration executive actions has thus far failed to establish any binding national precedent. The GOP’s grandiose claims that the immigration executive actions are an abuse of Presidential power have have not been affirmed by the Supreme Court. Yes, DAPA and DACA+ have been temporarily blocked — and that’s devastating news to millions of immigrants and their families. But, it’s a setback, not a loss, and there are other ways forward.

Again: DAPA and DACA+ were not defeated in the Supreme Court. What we’re left with is a legally infirm decision from the 5th Circuit Court of Appeals that should only be binding in the 3 states that make up the 5th judicial circuit of the United States — Texas, Louisiana and Mississippi.

The Obama administration does not have to simply accept the Supreme Court’s failure to rule. It can — indeed should — immediately file a motion for reargument before the Court to take place once a ninth justice is confirmed by the U.S. Senate. Granted, given the continued obstruction by Senate Republicans, a new justice may not be seated for several months and possibly not until the next President is sworn in.

Former U.S. Solicitor General Walter Dellinger endorsed this legal strategy today, writing at Slate:

This battle is not over. The Department of Justice should consider taking a step it has rarely taken: filing a motion asking the court to reconsider the decision and further asking the court to defer acting on the petition until there is a full complement of justices. I believe that at least twice during the New Deal, the Franklin Roosevelt administration successfully asked for a rehearing of cases that had been heard by an equally divided court.

A re-argument would seem particularly appropriate in a case like U.S. v Texas which directly impacts the lives of millions of parents and DREAMers with strong ties to the U.S. And it’s particularly egregious that the Supreme Court’s inability to decide a case of such national significance is the direct result of the Senate’s failure to do its constitutionally mandated job: considering the nomination of Judge Merrick Garland to the Supreme Court.

Importantly, rehearing before a fully staffed Supreme Court may result in a final decision in U.S. v Texas obviating the need to send the case back to the lower courts for further hearings. That’s because a 9 justice Supreme Court may yet dismiss it on standing grounds concluding that political disputes like the Republican attack on DAPA and DACA+ belong at the ballot box, not in a court of law.

Nor would U.S. v. Texas be the first or the only case this term where rehearing was sought after the Court failed to decide. Friedrichs v. California Teachers Association is another case in which the Supreme Court split 4–4 earlier this term. There, one of the parties has asked for re-argument and the Court is currently considering the request.

The evenly divided Supreme Court also raises some serious legal questions about whether DAPA and DACA+ should continue to be blocked nationally. States that stood in support of the executive actions and the Federal Government should seriously consider challenging the national scope of the injunction blocking DAPA and DACA+. If the Supreme Court’s inability to decide U.S. v Texas creates no national precedent why should the injunction continue nationwide? As Tom Goldstein explained on SCOTUSblog, “there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.”

What does that mean for Hanen’s nationwide injunction? According to Noah Feldman, professor of constitutional and international law at Harvard University and Bloomberg View columnist, the answer is not clear:

There’s a legitimate technical question about whether the national injunction should remain in place after the Supreme Court has heard the case. It would take five votes for Supreme Court to issue a national injunction itself — votes that certainly won’t exist. Therefore it’s at least conceivable that the plan could go into place outside the 5th Circuit.

That is indeed conceivable and should be tested. Two likely contenders for action are the Attorneys General from California, Kamala Harris, and New York, Eric Schneiderman. Both signed amicus briefs opposing Texas, and both states have large populations of immigrants who would benefit from executive actions.

At a minimum, the Supreme Court’s 4–4 split in U.S. v. Texas raises serious questions about the national scope of Hanen’s hold on DAPA and DACA+. If properly challenged in other circuit courts, perhaps the scope of the injunction could be limited.

We can never forget the political nature of this case. It’s all about politics. The plaintiffs, Republican Governors and Attorneys General from 26 states, led by Texas, have never hidden their animus towards immigrants and President Obama. They wanted Judge Hanen, who was well known for his anti-immigrant and anti-Obama views, to hear the case. And, of course, it didn’t hurt that appeals cases from Texas are heard in the notoriously conservative 5th Circuit.

In Chief Justice Roberts’ mind, he’s a stickler for standing in the federal courts. But, today, he showed his politics trump his principles. Today he made it clear that political questions are justiciable, if they are brought by his political allies.