We’ll Learn More Today About What’s Next For DACA

While Congress was debating a legislative fix for DACA (which ultimately failed in the Senate), we heard a lot about a deadline coming on March 5th. That’s because when AG Sessions announced last September that the Trump administration would end the program, they allowed six months for the program to be wound down, with a final end date next month.

That deadline is now meaningless because 17 states filed suit over the Trump administration’s DACA decision. Two federal judges (one in San Francisco and one in New York) have issued an injunction against the administration’s attempt to end the program while these cases work their way through the courts, which means that DACA recipients can renew their status. It is worth noting how U.S. District Judge Nicholas Garaufis of the Eastern District of New York reached his decision.

“The question before the court is thus not whether defendants could end the DACA program, but whether they offered legally adequate reasons for doing so. Based on its review of the record before it, the court concludes that defendants have not done so,” he wrote.

At issue were the reasons the Trump administration has provided for needing to drop the program, according to Garaufis, both of which were erroneous.

First, the administration has argued on a legal basis that DACA was unconstitutional and violated both the Administrative Procedure Act and the Immigration and Nationality Act. Second, this “erroneous conclusion” relied on the findings in the courts that DACA’s sister program, Deferred Action for Parents of Americans and Lawful Permanent Residents, was legally unsustainable.

That the program that was claimed to be illegal was allowed to wind down appeared to contradict the idea that it was, in fact, illegal. “Any of these flaws would support invalidating the DACA rescission as arbitrary and capricious,” Garaufis said.

At least in these courts, that doesn’t bode well for Trump’s decision to end the program. Perhaps that is why the Justice Department took the unusual step of skipping the appeals court and going directly to the Supreme Court, asking them to intervene immediately on the injunction.

Last Friday, the justices held a closed-door meeting to decide whether to take up the case. Given that they didn’t issue a decision that day, combined with a federal holiday yesterday, it is expected that we will hear something today. Here is how Noah Lanard described the options:

The worst case for DACA recipients would be for the Supreme Court to take the case this term and overturn the injunction. Even then, DACA renewals are likely to remain open for a few more months because both sides would need time to prepare the case. Another option would be for the Supreme Court to take the case in its next term, which starts in October—a more typical schedule for the court. If the Supreme Court completely denies the Justice Department’s request, the appeal will be heard by the liberal Ninth Circuit Court of Appeals. The Ninth Circuit is still months away from hearing the case, and it could ultimately decide to keep the injunction in place.

Given the current make-up of the Supreme Court, it would be a safe bet to assume that there are four votes against pre-empting the appeals court process immediately and three votes in favor. That would leave it up to Kennedy, and perhaps Roberts, to decide whether they want to be the ones to unleash the Trump administration’s deportation forces on the Dreamers in the next couple of months.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.