1 - This is a summary of the DACA order today that came down from Judge Hanen in the US District Court for the Southern District of Texas. Judge Hanen was the same judge who ruled against the DAPA program in 2016. 
2 - It’s pretty clear that the judge largely bought the plaintiffs overall arguments regarding the legality of DACA. And he suggested they would likely win at trial in his courtroom. But they didn’t meet the test for a preliminary injunction.
3- This is critical because it now means DACA will likely remain in place until the Supreme Court ultimately decides the issue. That could be another year or more away. Here’s the link to the case - scribd.com/document/38749…
4 - The plaintiffs are TX, AL, AR, LA, NE, SC, WV, KS and the govs of MS & ME. They are arguing DACA is illegal because its creation and continued existence violates the Administrative Procedure Act (APA). Also argue that DACA violates the Take Care Clause of the Constitution.
5 - The Defendants are USA, DHS Sec, CBP Commissioner, the Dep Dir of ICE, Dir of USCIS and the Chief of the Border Patrol. 22 DACA recipients intervened as Defendants as well as the State of NJ (presumably based on expectation the Administration wouldn’t really try too hard).
6 - The Plaintiffs sought a preliminary injunction to stop the govt from issuing or renewing any DACA approvals. Plaintiffs also sought a declaratory judgment that DACA is contrary to the APA, the Take Care Clause which would also require the termination of the DACA program.
7 - The court noted that it previously ruled against expanding DACA with the DAPA program and that the Administration and the Plaintiffs reached an agreement regarding the dismissal of that case.
8 - The court noted it was not ruling on the benefit of the program or about what the Administration should do with respect to individuals who are in the program (such as deporting any of them).
9 - After reviewing the DAPA case, the court noted that the Sup Court never got to ruling on the legality of the DAPA bc it was deadlocked & the case was referred back to the dist court. And determination was still not made bc the case was dismissed by agreement of the parties.
10 - The court notes that the DAPA plaintiffs understood DACA was to be dismantled as well under the dismissal agreement, but that this was thwarted by 2 injunctions from district courts in CA and NY. The DC case that would have allowed new DACA applicants prompted this new case.
11 - The Court denied the DACAns motion to dismiss based on the other court cases. The Court said those cases were based on the legality of the WH DACA rescission memo & this case isn't. Also, this court addressed the issue before the others (the 2016 DAPA/DACA expansion case).
12 - The court defends nationwide injunctions (including the ones in effect preserving DACA) noting that limiting an injunction to just a part of the country is almost impossible to administer.
13 - The court also notes it doesn’t need to defer to the other courts because it is not issuing an order that is contrary to the other orders (on page 16, this is the first suggestion by the judge the plaintiffs are in trouble).
14 - The court notes that DACA has problems for the same reason DAPA/expanded DACA did – namely, that there was no compliance with the APA notice-and-comment requirements and that this was affirmed by the 5th Circuit.
15 - The court found in favor of the plaintiffs that there was a case or controversy. Also, the court ruled the plaintiffs had standing for same reason as the DAPA case. The court agreed with TX’s claim that DACA injures Texans bc recipients compete for jobs.
16 - The plaintiffs also argued that they have standing because they incur costs for providing DACA recipients with healthcare, education and law enforcement services. The court was satisfied with this argument.
17 - The court then turns to whether DACA is reviewable under the Admin Procedure Act. The issue in contention was whether DACA was “an agency action … committed to agency discretion by law.” The court held that DACA is reviewable under the APA for the same reason as DAPA.
18 - Now for the preliminary injunction. 4 factors – 1) substantial likelihood that plaintiffs will win on merits; 2) threat of suffering irreparable injury; 3) plaintiff injuries outweigh the defendant injuries; and 4) granting injunction won’t disserve the public interest.
19 - Factor 1 – likelihood of success. The court passed on whether DACA violates the Take Care Clause of the Const. Why? Because the clause can be read to support or oppose DACA & the court can rule on this issue without considering this issue. & case law is really unclear.
20 - court then turns to the APA & decided that the Chevron test –that the statute is ambiguous and an agency’s interpretation is reasonable – is met for the same reasons decided in the DAPA case.The INA makes DACA recipients removable and DACA prevents that. Cites DAPA decision.
21 - The court held that the US Code describes ways people can get lawful presence & work authorization & it doesn’t include DACA (or DAPA). & it held the advance parole benefit helps DACA recipients unlawfully avoid the 3/10 year bars & seek to adjust status to a green card.
22 - Chevron pt. 2 also not met. Agency must have a permissible construction of the statute. DACA is ‘manifestly contrary’ to the statutory scheme promulgated by Congress. & DAPA & DACA aren’t so different that it matters. The court also attacked deferred action concept.
23 - The court also held that DACA is not a procedural rule and is not a general policy statement and, thus subject to the APA. Bottom line – the court found plaintiffs made a clear showing they are likely to succeed on the merits at trial.
24 - Factor 2 – likelihood of substantial & immediate injury if the injunction isn’t granted; speculative injuries aren’t enough; the plaintiffs argue they’re paying millions for uncompensated benefits & law enforcement/educational costs & cost legal residents job opportunities.
25 - The court seemed more open to arguments from the DACA defendants and NJ regarding the net economic benefit of DACA and noted that just because this wasn’t relevant for standing, it might matter for the preliminary injunction. Nevertheless, the court found irreparable injury.
26 - The court addressed whether the plaintiffs waited too long to bring this action. They’ve had since June 2012. The court noted that while the statute of limitations isn’t up, delay is a factor in deciding if a preliminary injunction is appropriate & plaintiffs failed here.
27 - Factors 3 & 4 – What's the effect on each party of injunction? & what are the policy considerations? Here, the court notes the difference between DAPA and DACA. DAPA hadn’t taken effect. DACA has been around for 6 years. Significant hardships to DACA recipients demonstrated.
28 - Factors 3 & 4 (cont.) – Texas’ harms would still be occurring without DACA. The costs won’t change significantly.
29 - Court: “One cannot put the toothpaste back in the tube” and “one cannot unscramble the egg.” With DAPA, no one had gotten a benefit yet. Not true with DACA.
30 Finally, the court noted that while the plaintiffs may ultimately win when the case finishes in the courts, this is an issue “crying out for a legislative solution.”
End of thread.
