In five lawsuits across the country, courts are attempting to work out a legal solution to the political problem created by the Trump administration’s efforts to kill the Deferred Action for Childhood Arrivals (DACA) program. Meanwhile, the fate of hundreds of thousands of people and their families hangs in the balance.
So far, the federal courts have largely deemed that he Trump administration exceeded its authority in rescinding DACA. The U.S. Supreme Court has stayed out of the fight entirely, declining in February to step in. But with these cases now working their way through the appellate courts and a brand-new lawsuit filed earlier this month by Texas and six other Republican-led states, the Roberts Court won’t be able to avoid the fight for long.
On Tuesday, the Ninth Circuit Court of Appeals heard arguments in Regents of the University of California v. U.S. Department of Homeland Security: one of the first cases to challenge the Trump administration on DACA, and the case that could ultimately send the entire fight to the Supreme Court for resolution.
The DACA fight in the courts now really started more than a year ago, when Republicans in conservative states like Texas threatened to sue the administration if it didn’t end the program. The threat, which amounted to political cover for the administration, worked. The administration announced it was ending the program effective September 5. In response, DACA recipients and entities like the University of California sued, arguing the administration overstepped its authority and acted “arbitrarily and capriciously” when it rescinded the program. Lawsuits in New York, Maryland, and Washington D.C. soon followed, as did the orders to the administration to keep the program in place to varying degrees.
Roe is gone. The chaos is just beginning.
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In January, U.S. District Judge William Alsup in California ordered the administration, with regard to renewal applications, “to maintain the DACA program on a nationwide basis on the same terms and conditions” in place before the administration announced the program would end. That order did not direct the administration to process new applications. This is the case the Ninth Circuit heard arguments in on Tuesday.
In February, a federal court issued a similar order in litigation in New York. That case is currently before the Second Circuit Court of Appeals. Oral arguments in that case have not yet been set.
Then in March, U.S. District Judge Roger Titus in Maryland denied a request by DACA recipients and immigrant advocacy groups to block the administration from ending the program, scoring a win for the administration. The plaintiffs have appealed that decision to the Fourth Circuit Court of Appeals.
Meanwhile, in April, a federal court in Washington D.C. ordered the Trump administration to resume DACA in its entirety, including processing new applications. However the court stayed that order until late July. The Justice Department hasn’t yet appealed this case.
Then there’s the case filed earlier this month in federal court in Texas by conservative attorneys general, making good on their threat over a year ago to sue the administration if it didn’t end the program. That lawsuit is just getting started, but there’s every reason to believe conservatives will get a ruling in their favor, given that U.S. District Judge Andrew Hanen will oversee the Texas litigation. He is the same judge who blocked the Obama administration in 2015 from enforcing the Deferred Action for Parents of Americans program and the DACA expansion. With this case, Republicans are almost certainly hoping for a ruling that conflicts with the two other federal courts that have ordered the program to continue, as a way to try and fast-track a challenge back before the Roberts Court.
It’s a challenge the Court will have almost no choice but to accept: After Tuesday’s arguments, it’s hard to see any outcome other than the Roberts Court being the final arbiter of the DACA program.
Deputy Assistant Attorney General Hashim Mooppan defended the Trump administration and argued that the court didn’t have the power to second-guess the administration’s actions in ending the program. The panel of judges, which was comprised of two of President Barack Obama’s appointees and an appointee of President Bill Clinton, was skeptical.
Michael Mongan, deputy solicitor general of California, was first for the challengers and immediately addressed Mooppan’s argument. Jeffrey Davidson, representing the University of California, picked up the thread after Mongan’s allotted time expired. The government was wrong on the law when it decided to rescind DACA, Davidson told the court, and that erroneous legal conclusion is enough to give the courts an opening to review the decision. It’s quite simple, he said.
But more than the administration’s error of law, Davidson went into detail about the fact that the administration had relied on a one-page memorandum issued by Attorney General Jeff Sessions to conclude the DACA program should end. That memorandum provided no analysis of the impact on current recipients, or any acknowledgement of the chaos ending the program would create.
It was Mark Rosenbaum, though, who communicated what’s at the heart of this case: not the power of the courts to second-guess the administration, but the fate of the hundreds of thousands of Dreamers whose lives hang in the balance.
As the attorney on behalf of several DACA recipients, Rosenbaum spent the duration of his time detailing the harm they faced if the program ended. These plaintiffs include doctors, lawyers, and students. Rosenbaum argued passionately for their constitutional liberty and dignity interests and explained how the administration’s actions, which treated them as “disposable” and then as “bargaining chips,” violated their due process rights.
“Families are not a two-year commitment,” Rosenbaum said when answering whether it really was reasonable for Dreamers to believe the program would continue beyond the Obama administration, regardless of who would succeed him as president. The Obama administration had encouraged recipients to build ties to the community. That implies, Rosenbaum insisted, the program would continue.
At the end of the arguments, all focus returned to the Supreme Court. Mooppan urged the judges to rule in this case quickly, and the judges asked what would happen if Judge Hanen ruled against DACA before the Ninth Circuit issued its ruling. Mupan answered with a nervous laugh that spread to the rest of the courtroom. As if sharing an inside joke, everyone appeared resigned to the fact that such a ruling would be coming from Texas—because getting such a ruling was the only reason conservatives ever filed a lawsuit there.
Except there are lives dependent on the outcome of this litigation. They are not a punch line to be shared between attorneys and other members of the courtroom. I understand that in an hour-long oral argument, in a case like this one built on some technical and arcane provisions of administrative law, the human toll of the Trump administration won’t necessarily be at the forefront of arguments. At this stage in the litigation, procedural arguments are at the heart of the fight.
But the question of what will happen if (and when) Hanen issues a nationwide injunction ordering the administration to immediately end DACA is a reasonable one—to which Mooppan should have had an answer beyond a chuckle.
The judges did not indicate when they would issue their opinion in the case. Meanwhile, a scheduling conference in the Texas litigation is currently set for May 30, and Hanen could issue a ruling before the end of summer. That would be just in time for the Supreme Court to take the case for its fall term.