Texas’s DACA Challenge Sets Up Supreme Court Dreamer Showdown

(Bloomberg) -- Texas’s legal bid to end the Obama-era policy that protects 700,000 undocumented young immigrants brought to the U.S. illegally as children, known as Dreamers, may set the stage for the Trump administration to take the issue back to the Supreme Court, which has so far refused to review the policy.

Three federal judges in other parts of the country have already issued orders blocking President Donald Trump and U.S. Attorney General Jeff Sessions -- who both publicly oppose the Deferred Action for Childhood Arrivals program -- from killing DACA.

If U.S. District Judge Andrew Hanen of Brownsville, Texas, decides the challenge filed Tuesday by Texas and six other Republican-led states in the states’ favor, he could direct the administration to end the program. Such an order would subject Trump to conflicting instructions regarding the same program, substantially increasing odds the high court will choose to step in to referee the dispute between federal judges, said Stephen Yale-Loehr, a Cornell University law professor.

“If this judge issues an injunction in Texas’s favor, that definitely gives Trump political cover to say his hands are tied, that he’d like to be compassionate, but a judge made him end DACA,” Yale-Loehr, who has written a 21-volume treatise on immigration law, said in a phone interview. “Then the Justice Department can go back to the Supreme Court and ask them to take up the case now” rather than wait until the other judges’ decisions wind their way up through appellate courts, he said.

Trump already tried in February to get the Supreme Court to review one of the DACA-preserving rulings, Yale-Loehr said, “but he got shot down.”

Texas attempted to kickstart the process Wednesday by asking Hanen to immediately order the administration to stop renewing or issuing any DACA permits while he mulls the program’s future. The state asked Hanen to temporarily block the program in time to prevent the Trump administration from complying with a competing judge’s order to start accepting new DACA applications on July 23.

Hanen previously blocked Obama’s plan to defer deportation for 4 million undocumented immigrants in a program called DAPA, or Deferred Action for Parents of Americans. His nationwide order ultimately was upheld by an evenly split Supreme Court. That was before Trump appointed a fifth conservative-leaning justice to the nation’s highest bench.

Although Texas’s challenge gives Dreamers new reason to worry, their cause is “not dead,” the Cornell law professor said. He said no one can predict with certainty how the recently reconstituted high court will view immigration policies implemented by a president without congressional approval, which is the complaint that both Texas and the Trump administration have lodged against the Obama initiatives.

The case is Texas v. Nielsen, 1:18-068, U.S. District Court, Southern District of Texas (Brownsville).

©2018 Bloomberg L.P.

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