The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This afternoon a federal district court judge in Texas declared that the Deferred Action for Childhood Arrivals (DACA) program is unlawful and barred the federal government from admitting new individuals into the program. The decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld.
The Supreme Court narrowly rejected the Trump Administration's effort to rescind DACA in Dept. of Homeland Security v. Regents of the University of California. Importantly for the present case, Chief Justice Roberts' opinion conspicuously avoided any determination that DACA itself was lawful when adopted. Further, controlling precedent in the U.S. Court of Appeals for the Fifth Circuit holds that the Obama Administration's DAPA immigration reforms, the lawfulness of which rested on a similar legal theory, was illegal. That case went to the Supreme Court, and the Fifth Circuit's decision was affirmed without opinion by an equally divided Court (which was short-handed due to Justice Scalia's untimely death). Accordingly, whether the plaintiff states had standing to challenge DACA's continued operation was a bigger issue than the legality of the program.
The district court's standing analysis is extensive, but ultimately concludes that the plaintiff states may challenge the program, relying in part on the doctrine of "special solicitude" for state standing claims under Massachusetts v. EPA. Here, as with much of the Court's analysis on the merits, the district court relies heavily upon controlling Fifth Circuit precedent from the DAPA litigation.
Having concluded that the plaintiff states have standing, the court quickly dispatches with any claim that DACA is unreviewable under the APA as an exercise of enforcement discretion. Given the Supreme Court's holding in Regents, that seems to be a no-brainer. It also loads the dice for the question of whether DHS was required to conduct a notice-and-comment rulemaking.
Turning to that question -- whether the Department of Homeland Security violated the APA's procedural requirements in enacting DACA -- the court rejects the federal government's claim that DACA is nothing more than a policy statement. Accordingly, the court concludes, DHS violated the APA by failing to conduct an informal rulemaking (aka "notice and comment") and DACA "never gained status as a legally binding policy that could impose duties or obligations."
Although this procedural holding provides sufficient basis for invalidating DACA, the court proceeded to address the underlying substantive argument that DACA violates existing immigration law. The court justifies this choice on the grounds that DHS announced its intention to conduct a notice-and-comment rulemaking that could cure the procedural APA violation, and its analysis could provide guidance for DHS on remand. (It also notes that the Fifth Circuit did something similar in the DAPA litigation.)
On the underlying question, the court concludes that DACA exceeds the authority Congress delegated to DHS under existing immigration statutes. In the court's view, DACA's alteration of federal policy concerning removal and work authorization are contrary to the comprehensive and carefully calibrated scheme enacted by Congress. I am on record as being skeptical of this argument but, as noted above, the Supreme Court had ample opportunity to conclude that DACA was lawful in the Regents case and failed to do so. Further, it is quite difficult to distinguish the legal arguments supporting DACA's lawfulness from those the Fifth Circuit rejected in the DAPA litigation, a point which the district court explains at length. Accordingly, there is nothing particularly surprising about the district court's conclusions here.
Having concluded that DACA is unlawful, there remains the question of what to do about it. Here the district court acknowledges the substantial reliance interests of DACA recipients and enjoins DACA prospectively, but does not invalidate DACA as applied to current recipients. The opinion concludes:
these rulings do not resolve the issue of the hundreds of thousands of DACA recipients and others who have relied upon this program for almost a decade. That reliance has not diminished and may, in fact, have increased over time. Therefore, the order of immediate vacatur as it applies to current DACA recipients (but not the order of remand) is temporarily stayed until a further order of this Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court.
DHS may continue to accept new DACA applications and renewal DACA applications as it has been ordered to by the Batalla Vidal court cited above, but it is hereby enjoined from approving any new DACA applications and granting the attendant status. A separate injunction order will be entered to that effect. To be clear, neither this order nor the accompanying in junction requires DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.
In other words, because DACA is unlawful, the federal government may not approve any new DACA applications. Those who have already received DACA, however, are not effected, at least until the expiration of current deferrals.
Stay tuned, as this is not the last you will hear about this case.
UPDATE: My co-bloggers have more. Here are Sam Bray on standing, remedies, and the court's injunction and Josh Blackman on what comes next.