1/ Judge Hanen declined to issue a preliminary injunction in the DACA case, but strongly hinted he would issue a declaration that DACA was unlawful. This decision is perhaps the least chaotic approach to tee this issue up for prompt #SCOTUS review.
scribd.com/document/38749…
scribd.com/document/38749…
2/ J. Hanen found he was not bound by the District Courts that previously issued nationwide injunctions. He's right. I made this point on @lawfareblog in May. The prior cases concerned legality of recission. Texas's case concerned legality of DACA itself lawfareblog.com/dueling-cosmic…
3/ Here is the crux of Judge Hanen's ruling. Texas failed today but will succeed on the merits
4/ This take is correct. It was very unlikely Judge Hanen would trigger an urgent rush to a short-handed #scotus. This decision tees up an orderly cert petition
5/ in a separate order, J. Hanen sua sponte certified the case for an interlocutory appeal. He states that a trial likely would be a waste of time, and a ruling by CA5 would provide a definitive resolution to the legal question. TX has 21 days to appeal scribd.com/document/38751…
6/ I agree with @ssamcham - The best route for Texas is to seek summary judgment on an expedited basis. Seeking an appeal, based solely on the merits, makes it tough for CA5 to find an abuse of discretion. Also, the cert petition screams vehicle probs
7/ Howard Wasserman makes the same point on Prawfs: there was no need to certify an interlocutory appeal bc PI denied, and the 5th Circ will be constrained in reversing. The posture is very odd
prawfsblawg.blogs.com/prawfsblawg/20…
prawfsblawg.blogs.com/prawfsblawg/20…
8/ Texas will not appeal denial of preliminary injunction in DACA case. They will instead seek summary judgment. And Texas will likely prevail. This path, which I predicted, is much smarter than an appeal
