Public figures at national and state government levels are maneuvering for position in the final hours before the so-called “DACA” controversy reaches a potentially critical point on Tuesday. The drama over what to do with some 800,000 young people who entered the U.S. illegally as children and now may face deportation will not unfold all at once, but tomorrow will bring some key early decisions.
The primary role players in the first phase on the fate of the “Deferred Action for Childhood Arrivals” program will be President Donald Trump, a group of states’ legal teams led by Texas attorney general Ken Paxton, and a U.S. trial court judge in Brownsville, Texas, Andrew S. Hanen. In later phases, Congress, a federal appeals court based in New Orleans, and the Supreme Court could also play roles.
What will happen first, and why:
The White House has announced that, on Tuesday, President Trump will reveal the decision he apparently finalized over the weekend in reaction to the strong demand of Attorney General Jeff Sessions and some of the President’s White House advisers to order the end of DACA. That is a program that has been in effect since President Obama created it more than five years ago – in June 2012.
It has allowed undocumented immigrants brought to this country when they were children or minors a chance to remain in the country, for periods of two years (which could be renewed), to get work permits, to go to school or college – but not on a path to U.S. citizenship. To be eligible, they had to stay out of trouble, and keep federal officials informed of where they lived. So far, upwards of 790,000 of those have received DACA permits, and more than 1 million overall appear to be currently eligible – if the program is continued. In formal terms under immigration law enforcement, they would be put in a lower priority for deportation. (Setting priorities is specifically allowed by immigration law, because the government does not have the resources to send out of the country all of those who have entered without legal status.)
The DACA program is separate from a more far-reaching Obama policy on deferred deportation, one set up for parents who themselves entered illegally and have children who have become citizens or otherwise have a right to stay in the U.S. That program, “Deferred Action for Parents of Americans and Lawful Permanent Residents,” widely known as “DAPA,” would have benefitted more than 4 million undocumented parents.
“DAPA” has never gone into effect because the judge in Brownsville blocked it in early 2015, declaring that it was likely that the program would ultimately fail as a violation of federal executive powers. Judge Hanen’s order was later upheld by the U.S. Court of Appeals for the Fifth Circuit, and it was left intact last year by a 4-to-4 split in the Supreme Court (when the ninth seat on the court was still vacant following the death of Justice Antonin Scalia.)
The “DACA” program, most of which was not covered by that order, has no specific date for it to end. President Trump as a candidate and as President has taken differing positions on its future, but several news organizations reported overnight Monday that the President had decided in weekend meetings with his aides that he would issue an executive order tomorrow to end it, but apparently had also decided not to make the order effective for six months, to give Congress a chance to decide DACA’s fate.
Tuesday has no official status as a deadline. But it is a deadline that Texas attorney general Paxton, along with executive officials of ten other states, set last June. They wrote to Attorney General Sessions that, unless the President “phased out” DACA by September 5, those states would begin a new lawsuit in Judge Hanen’s court to have DACA declared to be in violation of federal immigration law and the U.S. Constitution. (One of the states in Paxton’s coalition of 11 states on this maneuver, Tennessee, dropped out late last week.)
Paxton’s office said last week that the White House had asked his coalition to hold off for a time, but that Paxton had refused to do so. Technically, Judge Hanen still has pending in his court the leftover lawsuit against the DAPA program because, although the judge had barred its enforcement, the legal challenge to it had never gone to trial on the merits. There is, literally, nothing of significance left for the judge to decide about DAPA because the Trump Administration wiped out the underlying orders setting it up (at the same time that, temporarily, they were not ending the separate youth program, DACA). Even so, Judge Hanen agreed to a request by the Texas-led coalition to put all proceedings in the lingering DAPA case on hold until September 5.
Thus, sometime on Tuesday, Paxton’s legal team has to file some report with Judge Hanen. Presumably, they will do so as soon as they know the details of what President Trump will be doing about DACA.
What can the state challengers do tomorrow?
Among the options that Paxton’s legal team have available are to ask the judge for a further delay, until the situation is clarified in the wake of the new Trump order. In their letter to Attorney General Sessions last June, setting their September 5 deadline, they only asked that the DACA program be “phased out,” with no immediate deportations of those holding permits to stay, but with no new permits to be issued and no renewals of existing permits to be allowed.
So, the challengers could ask for more time to sort out just what the Trump order means, because along with a declaration that the DACA program is to end, the President may also spell out what happens in the six-month period that he reportedly has decided to leave the program in operation. The details of that may well affect what remedies the challengers would want to seek.
They could, however, go ahead with the filing of an entirely new lawsuit, as they threatened last June if there were not a declared end to DACA. Those lawyers, like many observers of the immigration policy scene, have no way of knowing at this point whether Congress can work out new legislation to deal with DACA within the comparatively short span of time the Trump order is apparently going to allow. Such a fresh lawsuit conceivably might add some incentive for Congress to act.
What happens after tomorrow, and why?
Because Judge Hanen’s order postponing proceedings in the pending lawsuit does run out on Tuesday, his next action may have to come soon, but no doubt will be affected by what the state coalition files. If only more delay is sought, he probably would grant that; there is nothing urgent about moving ahead to resolve whatever formalities might remain on the DAPA case.
If the Paxton-led coalition moves ahead with a new lawsuit, the judge’s first task will be to decide whether they can do that by simply submitting a new complaint – in the DAPA litigation, but aimed at the DACA program only – or instead would have to file an entirely new case aimed only at DACA. The civil rights groups that are still involved in defending the Obama deferred deportation programs have argued to the judge that the existing lawsuit cannot be the vehicle for challenging the DACA program, since that program as set up in 2012 was never at issue before Judge Hanen. In fact, they have asked the judge to simply dismiss the existing lawsuit as legally dead (“moot”), arguing that Judge Hanen lacks any jurisdiction to continue it.
In the meantime, the leaders of Congress will be considering whether they will make an effort to try to save the DACA program through new legislation. In recent days, a number of key Republicans – including House Speaker Paul Ryan, of Wisconsin – have argued that the DACA program should not be ended by presidential order, and that a legislative solution should be worked out instead.
There are three pending bills to save the DACA program. The broadest one, called the “Dream Act” (because the young people involved in the program are widely known as “Dreamers”), would actually set up a program that could lead to U.S. citizenship – something not allowed under DACA at present. Congress, however, has previously had multiple opportunities to enact new immigration laws, including versions of a law to spare the “Dreamers” from deportation, but has not been able to assemble sufficient support to get anything enacted.
Within the Trump Administration, officials will be carrying out the specifics of what the President decides to put in the details of tomorrow’s order. Those may include what to do when existing DACA permits expire, especially during the six-month delay of the program’s planned end, and whether any new permits will be issued.
The longer-term prospects
The future of the DACA drama, over a longer period of time, depends very much on (1) whether Congress is able to pass new legislation, (2) whether the scope of that new legislation leads to any new lawsuits against the measure itself to try to provide added protection for the “Dreamers,” (3) whether a lawsuit in Judge Hanen’s court moves ahead, in some form or other, and (4) whether other states that are sympathetic to DACA go to court to defend it from being wiped out.
If Congress does not act within the six-month span the President is said to be planning to allow, presumably Texas and its partners in challenging DACA will go ahead with a new lawsuit, if they have not done so immediately.
Judge Hanen, who has already demonstrated – in dealing with the DAPA program – that, at a minimum, he is deeply skeptical of the use of presidential authority to help the “Dreamers,” may be strongly inclined to block DACA in response to a new challenge by the Texas-led coalition.
Any such order would then move up to the Fifth Circuit Court based in New Orleans, and, ultimately, perhaps, to the Supreme Court.
The timing of any future appeal to the Supreme Court may be crucial. If it were to reach the Justices in the new term that starts in October, Justice Anthony M. Kennedy will likely hold a decisive position, with the Court now at full strength with Justice Neil M. Gorsuch on the bench.
Although Justice Kennedy presumably was a part of the four Justices who voted last year to leave intact the Hanen order against DAPA, he may well be more sympathetic to the claims of the youths involved in the DACA program.
But if new lawsuits stretch out, and do not reach the Court until after the next term is completed next June, there is a distinct possibility that Justice Kennedy will choose to retire next summer. That would allow President Trump to make a new nomination, and the President almost certainly would be prepared to choose a more conservative replacement, and that could make a difference with a newly-organized Court, made up of five conservative Justices and four liberal or progressive Justices.
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, where this story first appeared.
