Originally published by USA Today
A lawsuit filed in Brownsville, Texas, in 2014 ended President Barack Obama’s dream of helping millions of undocumented immigrants avoid deportation. Now the state hopes to copy its success with a new lawsuit targeting those already protected.
The challenge from Texas and six other heavily Republican states represents the most immediate threat to the Deferred Action for Childhood Arrivals (DACA) program since President Trump sought to wind it down last September. Like its predecessor, the case could move swiftly from Brownsville to the Supreme Court.
Ironically, the states are suing the Trump administration, which is on their side. The Mexican American Legal Defense and Educational Fund (MALDEF), representing 22 DACA recipients, calls it a “collusive lawsuit” and is seeking to intervene on the other side.
Three federal district courts have blocked the president’s effort to dismantle the program already this year. The Supreme Court refused to hear the first case before the U.S. Court of Appeals for the 9th Circuit, which has scheduled a hearing for next week. In the meantime, DACA recipients can renew their status. By July, new applications could be honored as well.
But by going back to court before the same federal judge who issued a nationwide injunction against Obama’s DAPA program for parents in 2015, Texas increases the chance of getting conflicting opinions from federal appeals courts — one prohibiting the government from continuing DACA against three others demanding that it do so.
The situation could become so complex that the Department of Homeland Security might continue to process DACA renewals in some parts of the country and not others while the case moves toward the Supreme Court, says Stephen Legomsky, professor emeritus at Washington University School of Law and former chief counsel at U.S. Citizenship and Immigration Services.
“I’m not aware of any legal precedent controlling what happens next,” Legomsky says. “I know of no prior situation in which there have been conflicting injunctions against the government, with one court ordering the government to do precisely what previous courts have prohibited it from doing.”
‘Race to the courthouse’
To date, district judges in California, New York and the District of Columbia have blocked Trump’s action from taking effect. But if Judge Andrew Hanen in Brownsville agrees with Texas and strikes down the entire DACA program created by Obama in 2012, the Justice Department would have a decision to make.
“It might provide a way to force the Supreme Court to take the issue,” says William Jay, an appellate lawyer who argues frequently before the justices and federal circuit courts.
Thomas Saenz, MALDEF’s president and general counsel, says the Texas case should not be allowed to overtake the others en route to the Supreme Court — particularly the initial challenge to Trump’s action brought by California and three other states.
“It is in some sense a race to the courthouse,” Saenz says. “The first case filed is where the issue should be resolved.”
Hanging in the balance are nearly 800,000 undocumented immigrants, including about 125,000 in Texas, who arrived as children. They have been allowed to remain in the country, seek work permits, and renew their status every two years. Some 55,000 renewals were issued in the first three months of this year.
“What they’re trying to do is stop the renewals,” says Karen Tumlin, legal director at the National Immigration Law Center. “It’s scary for DACA recipients nationwide.”
Trump’s action in September was based on the administration’s belief that Obama created the program illegally. It gave Congress six months to pass legislation, but Republicans and Democrats have been unable to compromise. Democrats want the program left alone; Republicans have used it as a bargaining chip to get other other immigration and border security enhancements, such as a wall along the Mexican border.
Obama defended the program in September following Trump’s action, one of only four times he has weighed in since leaving office. The other issues: Obamacare, the Paris climate accord, and the Iran nuclear agreement.
24 nationwide injunctions
The program was saved in January by District Judge William Alsup in California, who ruled that Trump’s decision to end it was based on a flawed legal premise. The New York and District of Columbia rulings followed in February and April.
Any of those cases could reach the Supreme Court, but a circuit split would make it more likely. The Texas case not only has a judge who previously ruled against the DAPA program but a federal appeals court that’s among the most conservative in the nation.
“It increases the chance that it will get to the Supreme Court faster, if only because it increases the chance of a circuit split,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.
The U.S. Court of Appeals for the 5th Circuit upheld Hanen’s ruling in 2015, leading to a Supreme Court showdown the following year. The justices deadlocked 4-4, leaving the lower court decision in place.
Since Trump became president in January 2017, federal courts have issued 24 nationwide injunctions in a variety of cases, including DACA, Trump’s immigration travel ban and his effort to punish so-called sanctuary cities. Attorney General Jeff Sessions has railed against those judges for “making themselves super-legislators for the entire United States.”
But Texas and its supporting states — Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia — are seeking a nationwide injunction as well. They argue in court papers that DACA “confers lawful presence and work permits that are valid nationwide and do not limit themselves to only particular states.”