Finding that Texas and other states waited too long to challenge a program to spare hundreds of thousands of young, undocumented immigrants from deportation, a Texas federal judge on Friday added a new layer of judicial protection for the policy that has been in effect for more than six years but has been under challenge by the Trump Administration for almost a year.
The program is popularly known for its initials, DACA – Deferred Action for Children Arrivals – and the young immigrants taking part are often called “Dreamers” for their desire to grow to maturity in America.
U.S, District Court Andrew S. Hanen of Brownsville, Texas, refused on Friday to stop the program even though he concluded that the program probably has been illegal since the Obama Administration set it up in June 2012.
His rejection of a plea by a coalition of ten states led by Texas was a considerable surprise, because the same judge more than three years ago had barred the Obama Administration from even putting into effect a similar deferred deportation program for millions of older undocumented immigrants – the parents of children who have a legal right to be in the country or are U.S. citizens.
Hanen’s February 2015 ruling against that similar program (along with his ban at that time on a 2014 expansion of DACA) ultimately was upheld by the Supreme Court on a 4-to-4 tie. That had no effect on the legality of the underlying DACA program dating from 2012. The program gives those covered by the program legal “presence” in this country and authorization to work or study, but with no promise of U.S. citizenship.
Three other federal judges – in California, New York and Washington, D.C. – have blocked the plan of President Trump, started last September, to scuttle DACA altogether. Together with Judge Hanen’s new ruling protecting DACA, at least for the time being, this series of court decisions insulates from deportation an estimated 702,000 younger immigrants.
If all those living in the country who are eligible to be in the program were now permitted to sign up, the total protected could be about double that number – about 1.5 million, Judge Hanen said. (None of the existing court rulings allows new applicants to sign up for DACA, but each does allow those already involved to renew their participation at two-year intervals.)
President Trump had given Congress six months to decide whether to rescue DACA from his plan to nullify it, but the lawmakers have not done so. While the program is highly popular across the nation and with many in Congress, the attempts among lawmakers to rescue it have been caught up in the prolonged controversy over the Trump plea to build a wall along the U.S.-Mexico border.
The Trump deadline to end the program, as of this past March, came and went because other federal judges were finding legal flaws in the way the Administration tried to end DACA.
Those other rulings, all by trial-level judges, are now under review in three separate federal appeals courts. After Judge Hanen issued his new ruling refusing to block the program in the form it has existed since 2012, he gave the challenging states or supporters of DACA 21 days to appeal his ruling to another appeals court, the U.S. Court of Appeals for the Fifth Circuit.
Because the DACA controversy is so highly charged emotionally, on both sides, its legality is expected to go to the Supreme Court in the not-distant future.
While other courts were ruling in ways to thwart the Trump shutdown plan, eight states and governors of two other states – with Texas in the lead – went into Judge Hanen’s court last December, seeking a ruling not that DACA had been illegally ended by the Trump Administration, but that it had been illegal since first adopted in 2012.
Reading through the 117 pages of Judge Hanen’s new ruling, it was very clear that he had all but finally agreed with those challengers’ basic legal arguments – that President Obama’s creation of the program conflicted with federal immigration laws, and that it was put into place illegally because the public had not been given a chance to comment on it before it was adopted.
If and when the challenge goes to a full trial, the judge declared, the program would probably be struck down for those violations and would have to be ended at that point. But now, with the challengers seeking only a temporary order to block the continuation of the program while the case continued in his court, the judge ruled against the challengers.
He found that at least the state of Texas would be harmed by DACA, because it was having to pay out millions of dollars in public benefits to DACA recipients – for public schooling and for medical care – and because its own residents were losing out in jobs to immigrants who could be paid less. But the judge balanced that harm against the harm that he said would befall hundreds of thousands of young immigrants, who were in the country not at their own fault, had been relying on the continuation of the program for more than six years. Their harm outweighed that done to Texas, he ruled.
A strong factor, the judge made clear, was that Texas and its allies could have brought the same challenge to the original DACA program that they did to the other Obama deferred deportation policy, when they filed that case in December 2014. Instead, he said, they waited another four years – a total of six years since DACA’s inception – to bring their challenge to DACA as it existed all during that time span.
While much of the Hanen opinion was sharply critical of the program under existing federal immigration laws, he refused to rule on whether it was unconstitutional as beyond the powers of the presidency. Instead, he found that President Obama lacked the authority under existing laws passed by Congress that control who may enter the country and who may stay.
If, as is expected, the DACA controversy goes to the Supreme Court for final resolution, the Court by then may have a full bench of nine Justices. Justice Anthony M. Kennedy retired at the end of July, and the replacement chosen by President Trump – Circuit Judge Brett M. Kavanaugh – has a good chance of winning Senate confirmation and being seated as a Justice before that case arrived.
When the Court last ruled on the Obama deferred deportation policy, in June 2016, the Court had only eight members following the death of Justice Antonin Scalia. At that time, the Justices split 4-to-4, leaving intact Judge Hanen’s earlier ruling against the Obama Administration. Justice Neil M. Gorsuch has since joined the Court.