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The DACA program may soon find itself in the center of what some say is a never-before-seen legal conundrum: directly conflicting court orders.
Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas this week is considering a case challenging the legality of the Deferred Action for Childhood Arrivals program. And there’s a good chance he’ll order that it be shut down, forcing the Department of Homeland Security to choose between complying with the shutdown order and other, existing court directives to keep the program running.
“I am fairly certain this never happened before,” law professor Josh Blackman told Bloomberg Law.
“It will put the government in a difficult position,” Stephen Legomsky, professor emeritus at Washington University School of Law in St. Louis, told Bloomberg Law. “I can’t recall a prior situation” in which there were “explicitly conflicting injunctions.”
The potential situation with DACA is different from past lawsuits involving federal policy, such as the travel ban. It’s common for courts to disagree over whether a policy should be discontinued. But not so much for two courts to issue orders requiring the government to take two completely opposite actions.
If Hanen orders a shutdown of DACA, however, the government would have a legitimate legal argument to follow that order instead of prior orders to keep the program running, according to at least one legal scholar.
The timing also could put those opposed to DACA, including the Trump administration, at a distinct legal advantage over those trying to preserve the program.
If the case gets to the U.S. Supreme Court while there are still only eight justices, they would likely split 4-4, and the order blocking DACA likely would be the one that controls, Legomsky said.
DACA, the deportation protection program for young, undocumented immigrants, was thrust into the spotlight in September 2017, when the Trump administration announced its intent to end it. That decision spurred several lawsuits, which in turn have resulted in federal court orders that the program remain in place for the time being.
Texas and six other states also have filed a lawsuit arguing the DACA program was illegal to begin with. Legomsky, who served as chief counsel at U.S. Citizenship and Immigration Services when DACA was implemented, has filed a declaration in the lawsuit in favor of the program.
But there’s a strong possibility the lawsuit will result in an order halting DACA.
Hanen is the same judge who in 2015 shut down DAPA, a DACA-like program for the undocumented immigrant parents of U.S. citizens and lawful permanent residents. It’s likely the judge will reach the same conclusion with respect to DACA.
Based on their past immigration track records, it’s also expected that Hanen’s order would be upheld by the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction over federal courts in Texas. At the same time, the Ninth Circuit likely will uphold a January order from a federal judge in California that DACA continue. That would create a split between two federal appeals courts.
What happens next is the question.
The basis for a court order—not what the order requires—should control which one the government follows, said Blackman, who teaches at South Texas College of Law in Houston.
The orders requiring the USCIS to keep accepting DACA applications are based on the argument that the way the agency tried to end the program was unlawful, he said. But if there’s a federal court order finding that the program itself is unlawful, it doesn’t really matter how it was ended, Blackman said.
The Trump administration likely would side with the Fifth Circuit, considering that it isn’t even defending the lawsuit brought by Texas and the other states, Legomsky said. The Mexican American Legal Defense and Educational Fund has stepped in to defend the DACA program in that case.
If the government did choose the Fifth Circuit, “I don’t think they could be held in contempt for violating the Ninth Circuit,” Legomsky said.
A representative for the Justice Department declined Bloomberg Law’s request for comment.
The current status of the Supreme Court complicates matters. “We have only eight justices for the foreseeable future,” Blackman said.
A single justice could put a lower court’s order on hold in the event of a conflict, Legomsky said. But that hold only would last until the full court considers the issue, and a majority of justices would be needed for a final decision.
“There’s a very good chance” that the court will get a majority decision one way or another if the Senate quickly confirms Judge Brett Kavanaugh , President Donald Trump ‘s pick to replace Justice Anthony Kennedy , he said. But that’s a big if, leaving a distinct possibility of a 4-4 vote.
The Supreme Court had eight justices in 2016 when it considered DAPA, the Deferred Action for Parents of Americans and Lawful Permanent Residents program. The court split 4-4, leaving in place a ruling from the U.S. Court of Appeals for the Fifth Circuit that upheld Hanen’s order blocking the program.
If that sort of scenario happens with DACA, that’s good news for those who want the program gone, Legomsky said.
As with the DAPA case, a tie among the justices would leave in place the lower court ruling that was appealed to the Supreme Court, he said. That would almost certainly be the ruling against DACA, he said.
Why is that?
Pro-DACA advocates are likely to appeal an adverse decision to the Supreme Court, Legomsky said. But it’s not clear whether the administration would appeal a decision in favor of the program if it could simply rely on another court’s finding that the program was illegal, he said.
On the other hand, it would be very difficult for those who want to keep DACA in place to appeal a decision in their favor, Legomsky said.
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