Second judge keeps DACA program going

Just days before the Supreme Court is to consider getting involved in the deepening controversy over the legal fate of nearly 700,000 undocumented immigrants who have grown up in this country, a second federal judge has ordered the Trump Administration not to end next month their protection against deportation. In a 55-page ruling Tuesday, U.S. District Judge Nicholas D. Garaufis of Brooklyn, N.Y., ruled that the plan to shut down the “DACA” program on March 5 is likely to be found to be illegal under federal law.  (DACA is short for Deferred Action for Childhood Arrivals.)

The judge’s order temporarily protecting the so-called “Dreamers” protected by DACA is nationwide in scope, just as was a similar order issued last month by a federal judge in San Francisco, U.S. District Judge William Alsup.

The Trump Administration is asking the Supreme Court to quickly review and strike down Judge Alsup’s order, urging the Justices to act on the case even before a federal appeals court has a chance to rule on the dispute.  At a private conference scheduled for Friday, the Justices are slated to consider that request.  At this point, the only questions before the Justices are whether to step into the dispute now and, if it does, whether to grant review of Judge Alsup’s order during the current term, which is likely to end in late June.

The fact that a second federal judge has done the same thing as Judge Alsup, temporarily barring the Administration from ending DACA three weeks from now, may add some intensity to the Administration’s appeal to the Justices, but also may intensify the defense before the Justices of DACA by its supporters, which include a number of DACA recipients as well as a group of states, universities and businesses.

Judge Garaufis’ new ruling Tuesday amounted to a sharp critique of the decision last September by top Trump Administration officials – including the heads of the Departments of Justice and of Homeland Security – to end DACA, after a “wind-down” period that would close program altogether on March 5.

The judge strongly disagreed with the Administration argument that it decided to end the program because officials had concluded that DACA was not only unconstitutional but also violated federal immigration law.   The judge concluded that officials had not justified their claim that the program would be struck down if tested in court.

While the judge stressed that he was not ruling, at this point, that DACA was, in fact, a fully constitutional and legal program, he left no doubt that he had come to believe that the Administration simply had not made an adequate study of the program’s legality before they decided to stop it.

Judge Garaufis also rejected a back-up argument made by Administration lawyers, that they chose to put an end to the program to avoid the “litigation risk” – that is, the risk that, if the program were challenged in court, it would be struck down.  That was an argument, the judge found, that federal lawyers had made up just for the purpose of defending in court their decision to end DACA.

The judge also concluded that the program had to be continued beyond the scheduled end date next month, because it would have a deep negative impact on the lives of hundreds of thousands of younger immigrants who had been brought to the United States as children by their parents, and had lived productive and useful lives as they grew up.   He also said that ending the program would have a deep impact on the nation’s economy, and on the state governments that depend for financial support upon the money that “Dreamers” pay in taxes.

The judge’s order to keep the program going was also based on his conclusion that there is not time enough for him and for higher courts to make a final decision on the constitutionality or legality of DACA prior to the scheduled shutdown.   His order, like the one issued by Judge Alsup last month, simply bars the Administration from ending DACA while the court cases over its validity continues.

If the Supreme Court now refuses to grant review of the Administration’s speedy appeal of the controversy, that would mean that the two judges’ orders against shutting it down would remain in effect.

If, however, the Justices do agree to review the dispute, and to do so in the remaining months of the current term, that could lead the two judges as well as the two federal appeals courts that would be in line to review the cases later to stand by until the Justices issued a final ruling, probably in late June.

However, the Administration has not specifically asked the Justices to put Judge Alsup’s order on hold even if it does grant review, so it is not fully clear what will happen if the Justices do accept the case for action on expedited basis.

Meanwhile, efforts in Congress by DACA supporters to rescue the program continue, with debate starting this week in the Senate on proposals in favor of protecting the “Dreamers.”  Even if the Senate were to approve some form of protection, the fate of such a measure in the House of Representatives appears to be uncertain at this point.

Nationwide, poll data indicate that large majorities do support doing something to protect the “Dreamers,” but that has been true for some time, and up to now has not made a difference in getting something done in Congress.

In the meantime, the order by Judge Alsup – and, now, the new order by Judge Garaufis – are keeping the program in operation pending some definite action in Congress and, if Congress does not act, pending further decisions in the courts on DACA’s fate

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.