If you recall, back in May, Texas and some other states sued to end the Deferred Action on Childhood Arrivals (DACA) program. When President Trump took office they had been poised to sue to have DACA declared illegal just as they had sued to end the obviously illegal Deferred Action on Parents of Americans (DAPA) program. They had given the administration an ultimatum, to either end the program or the states would go to court to end it. Since that time we’ve seen a legislative fix fail to materialize and some judges in the Ninth Circuit find that DACA actually can’t be ended, presumably because Obama’s legacy is more important than the law or the Constitution.

On Friday, the Judge Andrew Hanen, oddly enough, the same judge who drove a stake through the heart of DAPA, issued a ruling that temporarily salvaged the program.

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.
…
Judge Hanen’s ruling was unexpected. In his ruling in 2015 about the program for parents, he made it clear that he thought both efforts to protect undocumented immigrants were illegal. Immigrant rights activists were bracing for a ruling by Judge Hanen against the DACA program.

In his ruling on Friday, Judge Hanen made it clear that he thought the DACA program was likely to be declared illegal in the long run. A spokesman for the Justice Department praised the judge for that part of his ruling.

The New York Times and other media are portraying this as a victory but all he did was refuse to summarily end the program.

Just in: Judge Andrew Hanen denies @TXAG and nine other states' request to temporarily halt #2012 #DACA program. #immigration pic.twitter.com/Fv9CUHxJP4

— Julian Aguilar (@nachoaguilar) August 31, 2018

This is a long thread that explains the decision. It is critical to understanding the decision.

1 – This is a summary of the DACA order today that came down from Judge Hanen in the US District Court for the Southern District of Texas. Judge Hanen was the same judge who ruled against the DAPA program in 2016. pic.twitter.com/GuwQBGOHCS

— (((Greg Siskind))) (@gsiskind) September 1, 2018

I’m expanding this next thread to show the way forward. Texas and compatriots can immediately appeal the decision to Fifth Circuit. What happens there is anyone’s guess. At a minimum, what Judge Hanen is doing is setting up a well documented decision that will land at the Supreme Court.

2/ J. Hanen found he was not bound by the District Courts that previously issued nationwide injunctions. He's right. I made this point on @lawfareblog in May. The prior cases concerned legality of recission. Texas's case concerned legality of DACA itself https://t.co/dGmsILS7RX pic.twitter.com/643RNzn5gA

— Josh Blackman (@JoshMBlackman) August 31, 2018

4/ This take is correct. It was very unlikely Judge Hanen would trigger an urgent rush to a short-handed #scotus. This decision tees up an orderly cert petition https://t.co/xJFTTIZbBu

— Josh Blackman (@JoshMBlackman) August 31, 2018

6/ I agree with @ssamcham – The best route for Texas is to seek summary judgment on an expedited basis. Seeking an appeal, based solely on the merits, makes it tough for CA5 to find an abuse of discretion. Also, the cert petition screams vehicle probs
https://t.co/7mDmif2iEX

— Josh Blackman (@JoshMBlackman) September 1, 2018

7/ Howard Wasserman makes the same point on Prawfs: there was no need to certify an interlocutory appeal bc PI denied, and the 5th Circ will be constrained in reversing. The posture is very oddhttps://t.co/mj2I4WBm6N pic.twitter.com/P4tUVVDkXo

— Josh Blackman (@JoshMBlackman) September 1, 2018

This makes it pretty obvious that DACA, in its current iteration, is on its last legs. A couple of years ago I would have bet that a compromise would be reached but the more the debate develops it is clear that the DACA advocates want to use this to bootstrap a wide-ranging “immigration reform” package that will legalize several million illegals and create a non-ending route to permanent resident status by the simple expedient of bringing a kid to the country and registering them in DACA. If they can’t to that, they’d cheerfully see 700,000+ quasi-sorta-Americans deported because that would be a useful campaign issue.

Should Fifth Circuit uphold Hanen’s decision, this will go to trial later in the year and probably arrive at the Supreme Court sometime in late 2020.

=========
=========
Like what you see? Then visit my story archive.
Follow @streiffredstate

I’m on Facebook. Drop by and join the fun there.
=========
=========