| Copper |
08-07-2018 06:59 PM |
Vox: The legal battle over DACA, explained.
Quote:
A judge in Texas will probably order the Trump administration to kill DACA
The Trump administration’s ostensible reason for ending DACA last fall — the reason that Judge Bates found so insufficient — is that it was worried the program was unconstitutional and couldn’t survive a legal challenge. Specifically, a group of red states led by Texas had been threatening to sue the Trump administration to end DACA if it didn’t kill the program on its own.
The administration acceded to the threat. But then the judges in California and New York ordered Trump to start accepting renewal applications again. So the red states went to court anyway to get DACA shut down for good — turning the legal battle into a two-front war. (The administration isn’t defending DACA in this lawsuit; instead, it’s allowed a group of advocates to step in and defend the program instead.)
The lawsuit against DACA is being heard by Judge Andrew Hanen in the Southern District of Texas. He’s generally known as an immigration hawk, and made his feelings about the unconstitutionality of DACA pretty well-known when he ruled against an attempted expansion of the program during President Barack Obama’s second term.
On Wednesday afternoon, Hanen will hear arguments over whether to issue a nationwide injunction of his own, which would stop the Trump administration from continuing to implement DACA in any way. Immigration experts expect him to issue that injunction.
When and if that happens, the Trump administration will officially be under two conflicting injunctions from the courts. It will be under an order from Hanen to stop processing any DACA applications, and under orders from the judges in California and New York to continue processing DACA renewals. (And, depending on what’s happened in the DC case, potentially under orders to process new applications as well.)
If there’s any precedent for this, it hasn’t come up in constitutional lawyers’ discussion of the case on the internet so far. It’s truly uncharted territory.
The Supreme Court might sort out the dueling injunctions mess — or it might leave it up to the administration
As a general rule, when different judges in different areas of the country have issued conflicting opinions in a case, it becomes more likely that the Supreme Court will take up the case to sort out the inconsistency. But it usually does so at its own deliberate pace — which would likely result in the Court hearing one or more of the DACA cases in spring 2019, for a ruling that June.
But there’s a difference between conflicting opinions and conflicting orders about what the government is supposed to do right now.
It’s extremely likely that the Supreme Court will be asked to issue an emergency stay on Hanen’s ruling (unless the Fifth Circuit Court of Appeals does it for them) to prevent one anti-DACA ruling from trumping three pro-DACA ones.
What the Court will do is anyone’s guess. It might issue the stay and allow DACA to remain in effect per other judges’ orders until the case has fully come before SCOTUS. It might declare that Hanen’s ruling is in place for DACA recipients who live in the Fifth Circuit, but not in the rest of the country — or, conversely, that it’s in place everywhere but the Ninth Circuit, Second Circuit, and DC (where the other injunctions would be in effect). Or, in theory, it might declare that Hanen’s ruling somehow supersedes the other three.
Any of those, however, would require five justices to agree on the right path forward. And since Justice Anthony Kennedy formally retired in July — and the nominee to succeed him, Brett Kavanaugh, hasn’t yet been confirmed by the Senate — the eight justices on the Court are split 4-4 along ideological lines. Any ruling would require a justice to cross the aisle.
If the justices can’t issue a ruling, Hanen’s injunction would remain in place. But so would the other nationwide injunctions that contradicted Hanen. In other words, the question of what to do would remain open — it would just be up to the Trump administration to figure out what it’s supposed to do about DACA until the injunction gridlock is cleared.
It’s hardly a secret that the Trump administration would like to stop accepting DACA renewals — after all, that’s what it’s been trying to do for nearly a year. But it’s not clear whether they’re willing to get so aggressive that they accept the ruling of a single judge over the rulings of three others.
The legal mess turns the question of when to renew into a game of chance for DACA recipients
The legal mess forces DACA recipients to make a very difficult decision that could determine how long they get to stay and work in the US: When should they apply for another DACA renewal, knowing it could be their last?
Right now, literally anyone with a valid DACA work permit can apply for a renewal, even if their current permit doesn’t expire for months or years. That’s a change from the Obama administration, which accepted renewal applications only 150 days before a DACA recipient’s expiration. But the change wasn’t publicized at all — and even some professional immigration advocates didn’t know about it.
Protections from deportation and work permits under DACA are good for two years after they are issued. If your renewal application is granted while you still have six months on your last work permit, you have six months of overlap — and the last day that you’ll be able to work legally in the country only moves forward 18 months. So generally, there’s an incentive to apply for a renewal as close to the end of your first two-year grant as possible.
The plurality of DACA recipients — more than 300,000, according to DHS statistics from last fall — are set to lose their protections between January 1, 2019, and August 31, 2019. If they knew they’d be able to apply for renewals through next spring, it wouldn’t make any sense for them to apply now.
But due to the legal mishigas, they don’t actually know when the government might stop accepting renewal applications. So that calculus gets a lot weirder.
“The uncertainty of when the program will end creates incredibly stressful and perverse incentives where people are having to wonder if they should wait another nine months or whether they should apply now,” says Todd Schulte of the advocacy group FWD.us. Advocates like him are encouraging people to apply now.
Bates’s ruling aside, very few people think that DACA will ultimately survive its court battle. By the time the Supreme Court hears the full case, it will have a five-member conservative majority. And the worst-case scenario for the Trump administration is that the Supreme Court will give it a do-over on ending DACA.
But the difference between a work permit that expires after the next presidential election and one that expires in a matter of weeks is enormous. And with the court battle about to enter completely uncharted territory, no one can tell confused DACA recipients that they know exactly what the right decision should be.
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https://www.vox.com/policy-and-polit...s-judge-ruling |
