The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.