Judge declares DACA unlawful

A federal district court judge in Texas has ruled that DACA (Deferred Action for Childhood Arrivals) is invalid. The judge is Andrew Hanen. In 2015, he barred President Obama from carrying out DAPA (Deferred Action for Parents of Americans) and his decision was eventually upheld by the Supreme Court, 4-4.

Now, in one of those nationwide injunctions everyone hates except when it favors one’s side on an important matter, Hanen has enjoined DACA. The opinion is here.

The ruling vacates the original 2012 DACA memorandum, but only in part. The vacatur is temporarily stayed as applied to current DACA recipients. The ruling also allows DHS to keep accepting new applicants, but the agency is “enjoined from approving any new DACA applications and granting the attendant status.”

Jonathan Adler discusses the decision in some detail here. Josh Blackman discusses it here.

Blackman considers the key question of what happens next. He expects the Fifth Circuit Court of Appeals to affirm Judge Hanen’s ruling because it adheres closely to that court’s decision in the DAPA case.

At the Supreme Court level, the outcome is less certain. Blackman believes that Chief Justice Roberts will join the three liberal Justices in voting to grant a stay for all three remedies. That makes four votes.

Blackman expects Justice Gorsuch to join Justices Thomas and Alito in voting to uphold the district court’s remedies. That will leave the case in the hands of Justices Kavanaugh and Barrett.

Unfortunately, I don’t think anyone has a clear idea of what these two Trump appointees will do in this case. But Blackman’s predictions that Kavanaugh will try to find a way to split the difference and will write a “hand-wringing concurrence” seem plausible.

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