Last summer, a coalition of Republican attorneys general led by Texas Attorney General Ken Paxton issued a threat to the Trump administration: End the Deferred Action for Childhood Arrivals program, or we'll sue.
It worked. The administration announced it would wind down DACA on Sept. 5 — the deadline set by the Republican attorneys general — and the intra-GOP lawsuit never happened.
Upset at injunctions issued by federal judges in recent months that partially revived DACA, Texas and six other states filed a lawsuit this week challenging the legality of the program. The state asked for a preliminary injunction blocking the Trump administration from enforcing the terms of the original 2012 memorandum that created DACA, which has provided temporary protection against deportation and work authorization for hundreds of thousands of young, undocumented immigrants.
The Republican attorneys general argue that an injunction in the new case in Texas would make the nationwide orders requiring the administration to resume processing applications effectively moot — those cases dealt with challenges to how the Trump administration chose to end DACA, the states said, not the underlying question of whether DACA itself was lawful, which no court has directly addressed.
Legal experts told BuzzFeed News that it wasn't immediately clear what would happen if the judge in Texas blocked the administration from enforcing DACA, including provisions that other judges had already explicitly ordered the administration to carry out.
In California, US District Judge William Alsup in January ordered the administration "to maintain the DACA program on a nationwide basis on the same terms and conditions" that were in place before Sept. 5 with respect to processing DACA renewal applications; he didn't order the administration to process new applications. US District Judge Nicholas Garaufis in New York issued an injunction using similar language in February.
In late April, US District Judge John Bates in Washington, DC, ordered the administration to resume DACA in its entirety, including processing new applications, but he put his order on hold for 90 days to give the administration time to attempt to address the problems he identified with how the rescission was handled.
All three judges questioned Attorney General Jeff Sessions' determination that DACA was unlawful, which the Department of Homeland Security cited in its September memo declaring an end to DACA.
Federal district judges aren't bound by orders issued by other district judges. Samuel Bray, a law professor at UCLA School of Law, said that what happens next if there's an injunction out of Texas will depend on whether the judges in California, New York, and DC adjust their orders accordingly, or whether they direct the government to continue to process applications.
"They could decide to take a view that harmonizes all of the orders," Bray said. However, he added, "if they did that, they would be giving up on their position. There’s no 'split the difference' here."
Ultimately, any conflict between federal courts in different circuits would have to be resolved by the US Supreme Court.
Amanda Frost, a law professor at American University Washington College of Law, said there would likely be at least some short-term confusion, but it wouldn't be an unprecedented situation. Courts in the past have made an effort to avoid conflicting injunctions, she said.
Still, she said, "It puts officials in a bit of a bind until this gets worked out."
The judge assigned in Texas, US District Judge Andrew Hanen, is the same judge who in 2015 blocked the Obama administration from enforcing the Deferred Action for Parents of Americans program (DAPA) and an expansion of DACA; his order was upheld on appeal. Sessions and the Republican state officials suing now argue that DACA is unlawful for the same reasons that judges found that DAPA was unlawful. Hanen concluded the executive branch lacked authority to adopt the policy without going through a formal rulemaking process. The 5th Circuit upheld Hanen's ruling and went farther, finding that DAPA conflicted with federal immigration law.
Under Texas court rules, the Justice Department has 21 days to respond to the states' preliminary injunction motion, and the states then have 10 days to file a reply. If the Trump administration decides not to fight Texas's request, there is a chance Democratic state attorneys general or advocacy groups could seek permission to intervene, which they've done in other cases where the Trump administration decided not to defend Obama-era policies. A Justice Department spokesperson declined to comment.
As the Texas case unfolds, here's where the other cases stand:
Alsup was the first judge to rule on the Trump administration's decision to end DACA. He found that the challengers — which included the University of California, Democratic state attorneys general, California municipalities, and individual DACA recipients — were likely to succeed in arguing that the rescission was "arbitrary and capricious."
The judge expressed reservations about Sessions' claim that DACA was unlawful, citing a 2014 memo from the Justice Department's Office of Legal Counsel concluding that the Department of Homeland Security had authority to grant deferred action to immigrants considered a low priority for deportation.
"If each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?" Alsup wrote.
The Justice Department attempted to skip the usual next step, which would be an appeal in the US Court of Appeals for the 9th Circuit, and asked the Supreme Court to immediately hear the case instead. The Supreme Court rejected that request in February. The justices wrote in their order that "it is assumed that the Court of Appeals will proceed expeditiously to decide this case." Once the 9th Circuit rules, the losing side could then petition the Supreme Court to take up the case.
The 9th Circuit is scheduled to hear arguments on May 15.
Just over a month after Alsup's ruling, Garaufis issued his opinion, this time in two cases filed by a DACA recipient and the state of New York. Garaufis wrote that the Trump administration had failed to provide "legally adequate reasons" for ending DACA, echoing Alsup's issues with Sessions' conclusion that the program was unlawful.
"DACA is not unconstitutional simply because it was implemented by unilateral, executive action without express congressional authorization," Garaufis wrote. "The Executive Branch has wide discretion not to initiate or pursue specific enforcement actions."
In March, Garaufis granted the government's motion to dismiss several claims from the lawsuit filed by the DACA recipient, but allowed the case to go forward on allegations that the decision to end DACA was rooted in racial discrimination.
The Justice Department is challenging Garaufis's injunction in the 2nd Circuit. The last round of briefs are due by May 7. An argument date has not been set yet.
Bates's order went farther than his colleagues in California and New York, but he also put it on hold for 90 days and gave the government another shot at convincing him otherwise. The challengers in the two cases before Bates in Washington included the NAACP, Princeton University, and Microsoft Corp.
The judge slammed the administration, writing that they had provided "meager legal reasoning" for the decision to end DACA. He described DAPA as "related but distinct" from DACA, and wrote there was "reason to doubt" that the 5th Circuit's reasons for finding that DAPA was unlawful would extend to DACA, given the different populations at issue.
Bates's order, if it takes effect, would vacate the DACA rescission order and order the administration to resume processing both new and renewal applications.
The Justice Department hasn't appealed that decision to date. A spokesperson put out a statement at the time saying that the department "will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation."
The Trump administration has scored one major court win on DACA so far. US District Judge Roger Titus in Maryland denied a preliminary injunction in March in a case filed by DACA recipients and immigrant advocacy groups.
Titus made clear that he was reluctantly ruling for the government, writing, "The Court does not like the outcome of this case." But he concluded that the Department of Homeland Security acted within its authority, and that then–acting DHS secretary Elaine Duke relied on a "reasonable belief" the program was unlawful, based on the guidance from Sessions and the threat of legal action from the Republican state attorneys general.
Titus did jab at Trump, faulting him for making comments about immigrants that were "unfortunate, less-than-politically-correct," and "misguided, inconsistent, and occasionally irrational."
The plaintiffs in the Maryland case appealed to the 4th Circuit at the end of April.
Zoe Tillman is a legal reporter with BuzzFeed News and is based in Washington, DC.
Contact Zoe Tillman at email@example.com.
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