On May 1, Texas and six other states filed a lawsuit in federal court claiming that the Deferred Action on Childhood Arrivals, or DACA, or DREAMer, program was illegal. The suit was filed in the same court that blew up the Obama administration’s plan to legalize the parents and relatives of so-called DREAMers under the Orwellian named Deferred Action on Parents of Americans, or DAPA, program. This coalition of states had filed the same lawsuit earlier in the Trump administration but withdrew it in order to give the new administration the maneuver space to develop a legal solution to the problem.

Late last Friday, the Justice Department submitted its response to the lawsuit:

The Justice Department late Friday night responded to Texas’ request for an injunction in its challenge of the Deferred Action for Childhood Arrivals program, agreeing with the state and several others that the program is “unlawful.”

Texas and six other states are suing the federal government to dismantle the immigration policy, which was put in place by the Obama administration in 2012. It enables individuals who were brought to the United States illegally as children to remain in the country without fear of deportation and grants them work permits.

While the Justice Department on Friday called the program “an open-ended circumvention of immigration laws,” it requested a delay if an injuction is issued. If ordered, the government argues, such an injunction would conflict with separate nationwide injunctions that have already been issued by courts in California and New York, and subject the agency to “inconsistent obligations.”

Given the position taken by DOJ, the judge’s ruling in this case is a given.

As the pullquote indicates, this creates a spectacle that might be expected when any judge anywhere can issue an order that allegedly covers the entire United States (I really wish that some president, any president, would tell a federal district judge to FOAD the next time one of them issues a nationwide order). There are two orders in effect requiring the government to comply with a memorandum issued by Janet Napolitano and there will be one ruling saying the entire mess is illegal.

The next step is the Supreme Court:

If faced with competing court orders, the Justice Department said it would then rush to the U.S. Supreme Court and tell the justices that the government would be in violation no matter what it did — keeping DACA going would violate the Texas order, while trying to shut it down would violate the other court orders.

In that event, the government would ask the Supreme Court to put a hold on all the lower court rulings. And if the justices agreed, the Trump administration would be free to shut DACA down immediately, because nothing would be in effect to prevent the government from taking that action.
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Earlier this year, the Trump administration asked the U.S. Supreme Court to take up the DACA challenges, even before the federal appeals courts had their say. The justices declined that invitation in February but said they assumed the lower courts would move quickly.

This latest development would give the government a new reason to return to the Supreme Court, and its chances could be better this time, given the potential for conflicting lower court orders. If the justices agree, the case would probably not be heard until the fall. But in the meantime, if the Supreme Court blocks all the lower court rulings, the government would be free to shut DACA down.

All of this is well and good but the underlying issue remains. Two federal judges declared that a memo written by a former Obama appointee had the effect of law. If they are correct, we no longer need a president because Trump can create policies governing the nation and when he leaves office they are inviolate.

All of this serves to ratchet up the pressure on the House and Senate to come up with some kind of bill that won’t result in GOP voters riding them out of town on a rail. And the odds of that aren’t all that good.

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