Thread by @TomJawetz

#DACA court argument is just now beginning.

Presiding judge Hanen begins by explaining why he denies counsel’s request to argue the case remotely and instead had counsel fly into TX from NJ and DC.

Playing armchair epidemiologist about COVID, honestly.

/1

Now explaining why he’s not wearing a mask for the indoor court hearing.

Not an auspicious beginning to the argument.

And there are people in the gallery watching the proceedings!

Texas, what in the what?!?

Hanen now encouraging all participants to use the term “illegal alien” throughout the argument, even though it’s not “politically correct in today’s popular parlance.”

Reader: it’s not actually a technical term of art.

Hanen begins with the motion on standing before returning to the states’ motion for summary judgment.

Nina Perales from @MALDEF kicks in on behalf of DACA intervenors.

The issue here is whether the states have standing to challenge DACA and whether there’s any reason to accept as expert testimony the report of an economist who said DACA will have various labor market, economic effects necessary for the states’ claims of injury.

Similar challenge to the expert opinion of a demographer who admitted unfamiliarity with relevant details of immigration law & speculation about migration patterns of DACA recipients & other undocumented immigrants.

Hanen asks Texas whether immigration law would command the removal of all undocumented immigrants.

Years of litigation before Judge Hanen, beginning with DAPA and the expansion of DACA, and he continues to have no understanding that the government has prosecutorial discretion.

Great rejoinder by @MALDEF, pointing out that DACA recipients themselves are still removable. So DACA *itself* exemplifies & arises from the enforcement discretion of the government.

Also corrects Hanen that DACA is not a “lawful status”—another error he made preciously in DAPA.

New Jersey speaking now, I think, on standing. Hard to hear tbh.

Hanen asks basically whether the government’s decision not to deport every removable person is a failure to faithfully execute the laws, a particularly weak aspect of the constitutional claim against DACA.

NJ responds that administration must prioritize and Hanen says if we accepted that must we not also consider costs that states would incur from the non-enforcement decision?

NJ says amount of cost is entirely speculative and no basis to assume people would leave or be removed.

NJ correctly points out that DACA doesn’t as a factual matter affect whether someone is here or will remain here. Even without DACA, the federal government might deprioritize the removal of DACA recipients.

So ending DACA won’t address the costs key to purported standing.

Hanen says NJ is making TX’s “take care” argument.

Familiar territory. He clearly has a deeply held and false belief that the INA & Constitution mandate the removal of every removable person and anything less is a failure to take care that the laws be faithfully executed.

NJ talking about the SCOTUS decision in Regents this summer.

1) Strong evidence that ending DACA would be a net harm to the economies of states.

2) By reaffirming the strong legal basis for enforcement policies to forbear from removing people—distinct from granting benefits like work authorization—SCOTUS undermined the causal link needed for states’ standing argument. No reason to think ending DACA will lead to exodus.

Hanen grumbles about the idea that people won’t leave on the assumption that the law will be followed and l they will be removed.

Another instance of his firm belief that 100% deportation is the only legal outcome.

The Supreme Court said otherwise just a few months ago.

Not sure who’s talking here, but dismissing the “take care” argument as “resoundingly” wrong is <chef’s kiss>.

To the point about redressability, the speaker also notes that the professed injury to states is not only speculative and unproven but also minuscule compared to the injury they are looking to cause.

Texas responds that standing is not an accounting injury, so even if the costs of ending DACA greatly outweigh the costs of keeping it, any injury is adequate.

Doesn’t go to causation or redressability as they’ve been debating for most of this argument.

Texas highlights for the court that DACA is back in full effect as it was when the memo was issued in 2012.

Good for Hanen to understand the stakes of this case.

300,000 people locked out of DACA as a result of the 2017 rescission are right now able to apply.

Turning to the merits: whether DACA is against the law.

Texas argues that Congress could not have left expansive authority to the executive when it created its comprehensive immigration scheme.

Folks should read @cmrodriguez95 and @adambcox’s new book.

TX says that some DACA recipients have adjusted their status after receiving advance parole is proof DACA violates immigration law.

But the ability of certain people paroled into the country to adjust their status is itself in federal law.

Tough to listen to TX struggle to pronounce @shobawadhia’s name.

And quoting a passage by Shoba saying DACA is *perceived by beneficiaries* to be a material change in their immigration status isn’t actually proof that DACA does, in fact, grant lawful status.

Texas again highlights that DACA is in full effect. New applications and advance parole requests are being accepted and processed.

Hanen should feel the weight of that.

Hanen and @MALDEF debate the implications of Regents.

Hanen reads it as concluding the APA applies to DACA because it’s a substantive program beyond forbearance.

@MALDEF says SCOTUS showed those benefits derive from separate and preexisting AND UNCHALLENGED regulations.

Hanen hypothetical: if the states have standing and DACA violates the APA because there was no notice and comment, can the forbearance from removal be severed from the affirmative grant of benefits?

@MALDEF explains that to the extent plaintiffs are complaining about benefits they never sued to challenge the regulation and statute at the heart of their complaint.

If Texas wanted to end work authorization they should have sued to end it.

Same with statutory advance parole.

The advance parole statute is open to any individual, Nina Perales explains. If you EWId and are out of status and you requested advance parole, you can get it. Nothing special about DACA and AP.

Immigration law may be too complicated for courts of general jurisdiction.

In short, under Regents there’s prosecutorial discretion at the heart of forbearance and work authorization & advance parole from separate statutes & regs. States are suing about the former not the latter and yet conceded in filings they aren’t challenging PD so...

@MALDEF now slows down and really explains the difference between lawful status and lawful presence—a key point underlying the states’ flawed legal theory.

Hanen is predisposed to agree with the states but hopefully this discussion raises doubts.

@MALDEF: If individual grants of DACA are lawful as a matter of PD, DACA itself can’t be unlawful as a matter of PD.

Hanen asked whether the federal government could one by one grant DA to every undocumented immigrant in the country. What’s the limiting principle?

@MALDEF argues that’s well outside the court inquiry. DACA is necessarily limited in scale and scope. That’s the question before the court.

Texas does not say that any particular DACA recipient shouldn’t have gotten deferred action. They challenge the program. On what basis?

NJ argues that since the SJ motion was filed circumstances have changed significantly. Easiest approach has to be to pause the case and seek a status update once the presidential transition is done. This court did that in DAPA and should do it today.

Side note that the defendants-intervenors’ attorneys are really good. Since I’m listening and not watching the argument I’m visualizing David Rose from @SchittsCreek nailing this line of argument.

Not tweeting various aspects of this argument asking Hanen to forbear from making a decision before the inauguration but it’s really clear and effective.

If DOJ defended DACA it could address questions of discretionary adjudication that defendant-intervenors never could.

NJ moves to the merits and the implications of Regents.

1) Regents makes the point that the rescission of DACA was reviewable but that doesn’t mean DACA necessarily had to go through notice and comment rulemaking. Doesn’t follow. Doesn’t answer the question for the court today.

Onto the procedural APA issue: Loads of record evidence that individual DACA decisions are seriously discretionary. Changing denial rate over this administration also demonstrates level of discretion. And feds admitted there were some discretionary denials.

NJ now reiterating Nina Perales’ earlier point—if Texas has beef w/ DACA recipients getting AP and EADs, Texas can challenge the statute and reg that make those benefits available to DACA recipients.

But challenging DACA means challenging the discretionary decision to grant DA.

NJ points out that when Napolitano observed that DACA recipients can apply for AP and EADs she was simply noting what would be available to DACA recipients based upon separate, preexisting law. If she’d wanted to cut DACA recipients off from those benefits she could have.

NJ doesn’t say this but actually HHS did just that!

HHS changed the rule so that while all deferred action recipients are eligible for ACA benefits and purchasing insurance on the exchanges, DACA recipients uniquely are carved OUT of those benefits.

Bad decision but it’s true.

Very nice distinction NJ is drawing between the earlier Fifth Circuit decision on DAPA and the current motion at the SJ stage when there’s evidence of individualized, discretionary determinations.

We seem to be on a break and we’re just hearing crosstalk.

I’m nervous we’re gonna get a Naked Gun moment.

We’re back and Texas wraps it’s argument on the merits.

Onto possible remedies:

Texas wants to set aside DACA entirely.

MALDEF wants to throw out case for lack of standing.

If Hanen rules for Texas, what remedy to defendant-intervenors want?

Worth pausing to think about how breathtaking it would be for Texas to get the relief it seeks.

At @amprog’s DACA resource page you can find all sorts of information about how important DACA has been to millions of people, states, communities. #HomeIsHere americanprogress.org/daca

This is relevant to the argument NJ is making now, namely that a remand to the agency without setting aside the DACA memo in the interim would avoid significant disruption to NJ, employers, etc.

The egg has been substantially scrambled—a Hanen favorite.

Also, in this case we have a Supreme Court decision saying that if DACA is illegal the decision of how to deal with that fact involves loads of policy calls entrusted to the department.

It was the department’s failure to consider those policy Qs that doomed the 2017 rescission.

TX says NJ’s request is extraordinary bc it would say the agency could continue carrying out an unlawful policy.

Hanen asks if DHS could cure the legal deficiency thru notice & comment.

Does this mean he may not be leaning toward a decision based on substantive APA grounds?

TX then explains that they aren’t asking that DACA be thrown away entirely and immediately. In the courts equitable authority it could stay the effects of the injunction for a period of time.

But doesn’t that undercut the argument in the previous tweet?

Louisiana apparently just left the court.

We’re back to the person who is really hard to hear.

I think this person’s suggesting that if the court really wants to throw out the DACA memos it may want additional, targeted briefing on the appropriate remedy.

NJ responds to TX that there is precedent for leaving a program in place during agency remand even if a court finds it unlawful. In fact, that’s what SCOTUS did in Regents when it accepted the Trump DOJ’s conclusion DACA was unlawful but told DHS to think about the best response.

Hanen now asks NJ whether the admin on remand could cure the problem through notice and comment rulemaking.

NJ embraces that point and say yes, if the court is inclined to rule DACA invalid on procedural APA grounds a remand to possibly cure the defect would be perfect.

Hanen then observed that DACA is in such a different place than DAPA, because in DAPA it was halted before reliance interests could be formed but with DACA we know even the Court recognized tremendous reliance interests.

Texas steps in to say reliance interests haven’t yet been formed by the new applicants who have yet to apply for DACA based on the Batalla Vidal ruling.

Serious Scrooge here.

And that’s a wrap.

Extremely impressed w/ Nina Perales from @MALDEF and the attorney for NJ who I’m told is Jeremy Feigenbaum.

Honestly don’t know how this turns out.

Don’t know if the argument asking Hanen to hold until after the admin changes moved him but it was strong.

The question of remedy may come down to whether Hanen rules on procedural or substantive APA grounds—in the case of the former, NJ made a very strong argument in favor of remand without vacatur and Hanen himself seemed to agree.

Closing this thread by saying that there are millions of people whose lives and futures turn on this case.

It’s hard to hold that thought in your head and heart sometimes but that’s the simple truth.

I hope Hanen and his clerks sit with that this holiday season.

#HomeIsHere

For now, DACA is up and running and accepting new applicants every day.

As you’re making your end-of-the-year charitable donations, consider giving to a DACA fund to help immigrant youth renew their protections or apply for the first time.
secure.actblue.com/donate/daf-too…