The Path Forward For The Texas DACA Case

A stay from the Fifth Circuit is unlikely. Do Justices Kavanaugh and/or Barrett have the "fortitude" to let the injunction go into effect?


Today, Judge Hanen ruled that DACA was both procedurally and substantively invalid. (Co-blogger Jon Adler wrote about it here). This case has been pending forever.  Texas filed the original complaint in May 2018. The case sat around while the DACA rescission litigation wound through the federal courts. Last June, the Chief set aside the rescission memorandum in Regents. Now, a year later, the district court set aside the original policy, which has been in effect since 2012. Yes, the policy is more than 9 years old. It has stretched the entirety of my academic career.

Judge Hanen issued three very precise remedies First, the Court vacated the original 2012 DACA memorandum, in part. Second, the Court temporarily stayed "the immediate vacatur as it applies to current DACA recipients."  Third, DHS may continue to accept new applications, but the agency was "enjoined from approving any new DACA applications and granting the attendant status."

At this point, the Defendant-Intervenors, as well as the Biden Administration, will seek a stay from the Fifth Circuit. That remedy is very unlikely, as Hanen's decision follows very closely from the Fifth Circuit's DAPA decision. Later, the parties will seek an emergency stay from the Supreme Court.

How do the votes shake out? I suspect the Chief Justice will grant a stay for all three remedies. There is only one jurist in the country who can radically alter federal law, and his name is John G. Roberts. And we know the Chief does not like district court injunctions. Alas, Roberts plus the Kagan three makes four–not enough for a stay. And if all four dissent from the denial of a stay, it will be obvious to the world that Justices Kavanaugh and/or Barrett refused to help the Dreamers.

Will Justices Kavanaugh and Barrett have, in the words of Justice Gorsuch, the "fortitude" to deny the stay? Justice Kavanaugh recently split the difference in the eviction case: he found the moratorium illegal but declined to put that ruling into effect. My prediction? He declines to stay the first ground of relief, vote to stay at the second ground for relief, and urges the Court to grant cert before judgment for the third ground for relief. Plus he writes a hand-wringing concurrence about how DACA is illegal but the Dreamers are such wonderful people. He can copy-and-paste from his Regents decision: "They live, go to school, and work here with uncertainty about their futures."

What about Justice Barrett? Well, if Kavanaugh submits on the second ground, she can say nothing. Alas, silence is violence.

Ultimately, I think Texas wins across the board on the merits. And Republicans are put in a pinch, right in time for the midterms.

NEXT: District Court Declares DACA Unlawful (Updated)

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  1. Not sure how Republican would be “in a pinch”. Republicans will finally be able to tell voters that their votes might matter and that a compromise immigration law that actually responds to their voters’ wishes may finally be possible.

    Congressional elections are mostly not competitive anyway, so how many candidates would ever be “in a pinch” in any circumstance? Not many.

    Hopefully Republicans have learned to treat the news media as the enemy and don’t fall into the trap of substantively responding to their vapid taunts.

    1. Add to that is that a big section of their voter base is motivated by cruelty. The government is hurting the people they are supposed to be hurting.

      DACA as nearly 2-1 support in the polls, but it is the 25-30% that vote in their party primaries and that’s what counts.

      1. There is also a very strong “No Mas” attitude, and my take on this decision is that it is “No Mas” — no MORE children given DACA status.

        The government *can* deport the so-called “dreamers” — it doesn’t have to, it just can’t create any more of them. That will play well in Peoria.

      2. If you want some new policy legislation, the way to get it is to try to get enough Americans to agree it’s the right choice. Finger-pointing and condemning people not like you won’t get them to agree.

        And we see the results of DACA along the border right now. Looks like DACA has led to lots of misery that could have been avoided if people like you had wanted to get along with their fellow Americans and craft a compromise bill that addresses everyone’s concerns.

        1. ” If you want some new policy legislation, the way to get it is to try to get enough Americans to agree it’s the right choice. ”

          Most Americans agree with Democratic Party positions on most issues, from immigration to abortion, guns to economic policy, gay rights to science, health care to pandemic management.

          The practical question is: How much longer will the filibuster, voter suppression, gerrymandering, and our system’s structural amplification of certain votes and voices enable conservatives to continue to thwart the popular will?

  2. “Plus he writes a hand-wringing concurrence about how DACA is illegal but the Dreamers are such wonderful people. He can copy-and-paste from his Regents decision: “They live, go to school, and work here with uncertainty about their futures.””

    This is gross dude. Absolute moral bankruptcy to mock this as “handwringing” and to pretend that this isn’t about the disruption of the real lives of people who have done nothing but exist on the wrong side of a line since they were young. But no surprise coming from the most morally bankrupt conspirator by several orders of magnitude.

    1. It’s so important and yet Congress cannot be bothered to pass a law.

      We don’t use emotion and claims of “moral bankruptcy” to replace a functioning legal system.

      I’m hoping you didn’t skip Constitutional Law classes.

      1. Congress doesn’t pass laws about lots of important things. It’s not exactly filled with thoughtful and moral people.

        I’m sorry you’re dead inside and don’t realize that decisions have emotional and moral weight.

        Got an A. I understand the arguments and reasoning just fine. Doesn’t change the moral content of the decision or arguments in favor. Doesn’t change the practical implication for real human beings in the here and now.

        1. Case in point “wet foot dry foot” which was hugely impactful and an executive order. Also TPS is something the executive branch grants…so the executive branch has a lot of power with respect to immigration/asylum etc. But keep in mind the ACB and Kavanaugh are Bush loyalists and the Bush family are most likely supporters of dreamers.

        2. We are a nation of laws, not feelings. Any judge who rules on anything other than the law needs to be impeached, convicted and removed from the bench.

          1. Well that would be every judge in the country. So we wouldn’t have judges.

        3. LTG….I don’t know if you were being intentionally funny, but I thought this comment was a gem: Congress doesn’t pass laws about lots of important things. It’s not exactly filled with thoughtful and moral people.

      2. We see the consequences of the Obama Administration lawlessness along the border right now. Refusal to deal with the issue subjects more kids to this same fate.

        1. It’s not fate, it’s people deciding to do that to the kids. You can’t just blame other people for pointing a gun at someone and forcing them to a country they have no connection to, or endorsing that use of force. That’s a moral choice you’re making on your own. You need to deal with it and stop blaming other people for that choice.

          1. That’s not what the “fate” means in that context.

              1. Because words mean somewhat different things in different contexts. In that context it is used as a synonym for “outcome”. So whatever caused it, it is still an outcome or a “fate”. Consider the word to be “outcome” or “result” if “fate” is distracting you.

                1. You’re still trying to reassign blame for the acts of the worst moral decision-makers: he who uses force to remove people to somewhere they have no connection to and those who endorse that outcome.

                  1. Here’s the thing though. We live in a nation with a government. It is supposed to be a government “by the people”.

                    So if you want a different outcome, then convince people. Finger-pointing and wailing isn’t convincing and emotionalism isn’t a plan or a policy.

                    1. It doesn’t matter if I convince people or not. The moral implications are the same regardless. If you endorse it you have to deal with that.

                    2. The actual result may change based on what people want the government to do. Is the actual result less important than your judgement of the morality of the result? You can decide that for yourself.

                  2. The only things that matters is that armed agents of the state are going to remove people from their long term homes by force even though they didn’t choose to live there. It’s either okay or it isn’t. I say it’s not okay.

                    1. It won’t happen if a compromise immigration law is passed and that law allows them to stay. But that might require taking other Americans’ policy preferences seriously rather than just condemning them as immoral or deplorable or otherwise not worthy of self-government participation.

                    2. ” But that might require taking other Americans’ policy preferences seriously rather than just condemning them as immoral or deplorable or otherwise not worthy of self-government participation. ”

                      Another vote for political correctness that would enable the immoral and bigoted to hide behind euphemisms such as “traditional values” and “conservative values.”

                      (And my idea of political engagement with fans of cruel, bigoted, authoritarian immigration policies and practices is to continue to defeat them in the culture war, rather than to appease them. Why not stick with what has worked for many decades?)

                  3. “You’re still trying to reassign blame for the acts of the worst moral decision-makers: he who uses force to remove people to somewhere they have no connection to and those who endorse that outcome”

                    Two words: “Operation Wetback.”

                    Much as Eisenhower dealt with a problem that FDR had created, well, Obama created another problem…

          2. “it’s people deciding to do that to the kids”

            The people deciding are first and foremost the parents and guardians of the children that bring them here illegally, often under very dangerous and abusive conditions.

            Given your moral indignation, shall I assume you therefore demand much tighter control of the border and stricter enforcement against those who would subject children to danger and abuse? Or, is your solution an open border?

            1. No I actually am with Somin: using force to inhibit the free movement of people is morally wrong.

              But again: blaming parents doesn’t absolve the force users of moral responsibility. It just makes you sound like a psycho

              1. And when they break into your house and sit on your sofa watching your TV???

            2. Bingo—that was the Democrats’ position with respect to Cuban asylum seekers…but Republicans wanted Elian Gonzales to remain with his American kidnappers.

              1. And that was an awful position. Janet Reno in general was awful.

                1. Wow, that was literally Obama’s position too! Do you think he was awful because he didn’t want “carrots” inducing Cubans to undertake very dangerous sea crossings?? Remember, Cubans have free health care so to Democrats that’s a “big fucking deal”. 😉

        2. Nothing about the border now has the first thing to do with DACA.

          1. I don’t know if that’s true. DACA creates an incentive for people to come here illegally.

      3. Congress can’t pass a law because Republicans are assholes.

        1. Democrats hold the Senate, House, and White House.

          If they wanted to pass a law, they could.

          1. So you agree we should get rid of the filibuster?

            1. What bill is being fillibustered? In any event, the Dem’s didn’t change the law when they had a fillibuster proof majority during the Obama admin. They want to keep the issue alive.

            2. Why? There would need to be a bill being fillibustered.

        2. Congress could pass laws if you hated Americans less.

        3. A clean DACA bill would pass with no problem with Republicans. The issue is that the Democrats (Democratics?) in power don’t want the issue resolved. It generates to many campaign contributions and too many Democratic (Democrat?) votes. They won’t let a clean bill through.

          1. A clean DACA bill would pass with no problem with Republicans.

            Sure. And Scarlett Johansson would go out with me if only I asked her politely.

          2. Bullshit.

            Even now, the Republicans aren’t backing one.

            1. Why should Republicans spend political capital backing a law when Biden ignores laws?

              Perhaps Congress will debate a law now that Biden can no longer ignore the law indefinitely.

              If Dems have the same hatred for other Americans as you do, there’s not much reason for any Republican to want to do anything but fight back and try to defeat anything the Dems try to do.

              1. IOW, you agree that Harvey is wrong.

                1. Wrong.

                  “A clean DACA bill” makes his statement so vague as to be either right or wrong depending on what anyone thinks is “a clean DACA bill”. Plus it’s a prediction, so those are neither right nor wrong until the future comes to pass anyway.

                  Arguments about it being right or wrong are therefore pointless.

                  But your hostility to Americans makes any desirable outcome less likely (unless you think endless, bitter fighting is desirable).

    2. I wouldn’t call him “morally bankrupt” so much as self-absorbed and oblivious. He still sees Con Law as a video game.

      1. Which is pretty close to morally bankrupt.

        The fact is, Kavanaugh is right. They do “live, go to school, and work here with uncertainty about their futures.” For Josh to dismiss that, or not care, is pretty gross.

        1. He’s always dismissing any attempts at acknowledging the moral implications of decisions.

          1. That’s how you wind up on the disaffected, inconsequential, cranky, vanquished, immoral side of the culture war and on the wrong side of history.

          2. Because law is about facts, not emotion

            1. The quote from Kavanaugh cites facts.

              1. Kavanaugh might want to keep his vain musings for a memoir or a diary.

        2. “They do “live, go to school, and work here with uncertainty about their futures.””

          So do bank robbers.

          Look, we don’t, as a general rule, let people keep ill gotten goods, just because they use them and derive benefits from them, and would find their lives worsened if they had to part with them. In the case of illegal immigrants, the ill gotten good is their presence in the US.

          They should be deprived of it, even if it makes their lives worse, because they are not entitled to it, and they stole it. End of analysis.

    3. If a person steals a loaf of bread to feed themselves, is it still illegal?

      1. Yes. But prosecuting them is immoral.

        1. So you let them get away with it?

          How morally bankrupt of you, to so plainly countenance the robbery and harm to bakers or other stores.

          But at least you get to feel good about yourself, right? After all, you aren’t the one being robbed.

          1. The Baker gains nothing by depriving the man feeding himself of his liberty.

              1. Wow what? What does he gain? What does anyone gain?

                1. So if I eat your food and sleep in your bed, having me removed is immoral? Here’s a thought – emoting is no substitute for logical thought and your moral compass may not be universal. I’d guess from your commenting history that you graduated from law school a while back, and yet you have the assurance of a teenager. At first blush you seem like a troll, but you’re too consistent.

                  1. So if I eat your food and sleep in your bed, having me removed is immoral?

                    The dreamers aren’t eating your food or sleeping in your bed. Mostly, the older ones are making a positive contribution, and the ones still in school will be doing so soon enough.

                    Stop the stupid fucking demonization.

                2. “Wow what? What does he gain? ”
                  -The assurance that his labors will be compensated for in the future

                  “What does anyone gain?”
                  -A functioning society with stores that can safely operate and actually make money.

                  The alternative is….stores and bakeries close as their stock is all stolen.

                3. People like you are the reason why grocery and drug stores, as well as other retail, are closing and moving all over California, particularly in places like San Francisco, all due to the refusal to prosecute and punish property crimes like shoplifting (and ridiculous “defund the police activism”). You’ll then inevitably complain about the food deserts and lack of retail access for poor and minority communities, and blame it on racism.

                  It is a crime to steal or ignore common immigration laws, and if you don’t enforce such laws, you encourage such behavior.

                  There’s a reason why voters chose a buffoon like Trump after 8 years of Obama, and Democrats are terrified of losing Congress with little more than half of the first year of Biden’s term.

                4. In addition to what everyone else said, you police theft and punish thieves because people take justice into their own hands otherwise. And that eventually leads to cycles of violence.

                  Every chieftain and village elder and anyone else in authority down through time knows that.

                  If you want to see the alternative then Google “jungle justice”. And then come back and tell us if you think policing theft and prosecuting thieves is morally worse than those jungle justice examples.

              2. Also: for a libertarian blog this place sure is into use of government force.

                1. This is not a libertarian blog. It is a blog operated by and for movement conservatives who like to masquerade about in garish, unconvincing libertarian drag. It’s like a Ron Paul-Rand Paul-RuPaul threesome.

                2. Property rights – enforced by the government – is at the very heart of libertarianism.
                  You claim to be a lawyer, and yet are trying to attack others for supporting the government use of force? Just what did you study?

                  1. Law. Which means I know that most uses of government force are bollocks.

                    1. So, we are a nation of laws that need to be enforced, except the ones you don’t like?

                      While I generally oppose policies to selectively enforce laws, such as purported “sanctuary cities” for illegal alien, maybe I need to reconsider my position with respect to conservative areas refusing any cooperation with federal authorities to enforce “progressive” gun law or protecting abortion access.

                    2. You studied law just enough to not learn anything? Or did you just forget everything you didn’t like?

                      You were the one silly enough to try to pretend that libertarianism would be somehow on board with people stealing from others, and claiming that government use of force to protect essential physical property is wrong.

                      That’s an incredibly stupid position, and you never should have presented it.

                  2. There are no “property rights” involved here.

                    No one is stealing anything, despite what Tucker Carlson or someone spouts.

                3. Also: for a libertarian blog this place sure is into use of government force.

                  1) I really wish people would stop using this mindless formulation. Even if the VC were a libertarian blog (rather than a libertarianish one), that applies to the bloggers, not the commenters.

                  2) Are you talking about DACA or stealing the loaf of bread? I don’t think there’s any contradiction between being a libertarian and supporting the use of government force to protect private property from theft.

                  1. So libertarians have no problem with government power, just so long as that power is being wielded for causes they approve. Pretty much everyone is libertarian then.

            1. He gains compensation for his goods and effort? Literally? As in, that’s the very definition of payment.
              Do you apply even a single thought to these posts, or are they coming entirely from your feelz?

              1. Actually he doesn’t. Restitution isn’t always ordered nor is a person in jail particularly collectible.

                1. You’re really not thinking this through.

                  If someone can steal, without penalty, then there’s no reason not to steal. “Free” is always better than paying for something. So, if they steal previously, without penalty, they’ll do it in the future. There’s no reason not to.

                  If there’s a penalty for stealing, then it becomes a cost-benefit calculation. Steal something, and potentially get thrown in jail, or pay for it…and stay out of jail.

                  Because now there’s this cost-benefit analysis, the baker will tend to get compensated in the future.

        2. So, the baker suffers the destruction of his business and livelyhood, as people steal all his bread, and he is never paid, and the people are never prosecuted?

          1. Well, probably what we should do is figure out a way to make sure people aren’t starving to the point they need to steal bread rather than throwing them in jail. This also protects the baker, without being awful.

            1. And the concept of reasonableness is important in this context, which is why incels, those with Asperger syndrom, and other on-the-spectrum right-wingers have difficulty with it.

            2. What if, for example, we put together a system where those who were truly hungry were given an opportunity for free bread. And those people would be judged by a system designed to be fair to both the hungry and the baker.

              Meanwhile, other people had to actually pay for the bread. They might look hungry, but might not be truly hungry. Would that make sense?

              And what should happen if those people who just appeared to be hungry, but weren’t deemed truly hungry, decided to just steal the bread anyway? Should they be prosecuted?

                1. Indeed it is.

                  But some people aren’t part of SNAP. And they decide to steal instead.

                  So, as JB noted, we managed “figure out a way to make sure people aren’t starving.” But some people would steal ANYWAY, and break the system that was figured out. And LTG would still not prosecute them, but allow them to steal without consequence.

              1. So long as it was for those truly unable to work, not just unwilling to work, as suggested by people like AOC.

            3. What if people aren’t stealing because they’re starving, but instead are stealing as a lifestyle choice, because they don’t respect property rights, or care to commit to showing up for a regular job?

    4. “Gross” or not, he is absolutely right about Kavanaugh.

    5. If not the child, then someone broke immigration law. Laws have penalties and means of redress.

      DACA application should have been along this line:
      “I declare that I had no input into my immigration to the US, and as a minor for —- years after arrival, had no means to live independently or correct my immigration status on my own accord. I declare that the individual(s) responsible for brining me into the US is —————————-, and by this document attest as sworn statement under penalty of perjury that this is true, and that I would cooperate with any government actions that might arise against said person(s)”

      Somebody broke the law, and if not the former 2year old, then someone must be held accountable. Sucks for some people, but at least those with intent to violate law punished, and those who are personally innocent of intent get a pass. Sucks to have parents punished, but that happens all the time to US citizens whose parents screw up.

  3. So, in your view, would no stay be an unhappy event because the law says otherwise or because it may harm conservatives electorily or because Dreamers are good people or what?

  4. Truth be told I don’t see any good outcome no matter what the court does. It is easy to make a solid legal argument that DACA did not follow the law and should be eliminated. It is also possible to make a feel good argument that real lives will be affected if DACA goes away. What ever happens a lot of peeps will be unhappy.

    In the bigger picture there does seem to be movement towards a more rational immigration policy with rules being followed instead of the helter skelter system we have now where some peeps wait in line and follow the rules while a larger number sneak across the border and bet the broken enforcement system lets them fall through the cracks. The trick is to come up with a set of immigration rules that makes sense.

  5. The Supreme Court explicitly addressed the lawfulness of DACA in the recession case, and found it lawful (which is why it found the support for the recession decision, that it was unlawful, insufficient).

    1. No, the court held Trump did not rescind the policy properly, and explicitly did not address its legality.

      The closest is the DAPA policy, also struck down by Judge Hanen, with the decision upheld by the 5th Circuit and SCOTUS.

      Recall also that Obama even stated he didn’t have the authority for DACA and DAPA, but passed it anyway under political pressure.

      1. also struck down by Judge Hanen

        The haters have found their judge.

  6. Not sure how this would put Republicans in a pinch. The Democrats control both houses and the White House. They could pass a law legalizing something DACA like if they wanted and Republicans should vigorously point this out and perhaps even offer some support.

    Trump’s own stated goal in unwinding the regime was to incent Congress to pass legislation giving legal certainty to “dreamers.” He knew DACA was illegal and it was a matter of time before a court found it as such.

    1. I’m guessing he means that the legal controversy will keep DACA in the public’s attention, and that he feels the issue favors the Democrats.

  7. “Plus he writes a hand-wringing concurrence about how DACA is illegal but the Dreamers are such wonderful people. He can copy-and-paste from his Regents decision: “They live, go to school, and work here with uncertainty about their futures.””

    This legit shows how heartless you are. This decision will upend the lives of almost a million people putting in jeopardy their ability to work and provide for their families. Many may be subject to deportation to a country they have no memory of.

    Yet Josh sitting in his ivory tower clocked with his white priviledge will never know. I am sickened at the taught that you teach at my alma mater. I fully understand now why students protested you.

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