Statutes of Liberty: DACA in the crossfire before the Fifth Circuit Court of Appeals

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Laura Lorenzo, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Though the mills of God grind slowly; Yet they grind exceeding small; Though with patience He stands waiting, With exactness grinds He all.

Henry Wadsworth Longfellow contemplating DACA’s chances before the Fifth Circuit

The federal courts grind very slowly, but they grind exceeding small. The DACA program is about to be shuffled into a very large set of grinding wheels before the Fifth Circuit, and the smart money suggests that it might be turned into powder.

We’re here to explain how we got here, what the Biden Administration is trying to do about it, and what might happen next.

How did we get here?

In 2015, twenty-six states sued the Obama administration in an attempt to stop an expansion of DACA. That litigation, before U.S. Federal District Court Judge Andrew Hanen, stopped the planned expansion of DACA. During the pendency of that litigation, Donald Trump was elected President of the United States, and the Trump administration began making plans to rescind DACA, which would have mooted the case before Judge Hanen.

The Trump Administration’s attempt to rescind DACA failed, thanks to sloppy regulatory work by the Administration, which Chief Justice Roberts red-penciled with gusto in the Regents decision. (We covered that failure in these pages.) The Regents decision prevented the rescission of DACA, thereby un-mooting (as it were) the question of DACA’s constitutionality before Judge Hanen.

The litigants hostile to DACA therefore re-raised the question of DACA’s constitutionality before Judge Hanen. On July 16, 2021, Judge Hanen issued an order which stopped just short of rescinding DACA.

In a lengthy opinion, Judge Hanen described the reasons why (1) in his view, the promulgation of DACA was illegal, and (2) therefore the plaintiffs should prevail, but (3) stopped short of vacating DACA entirely, because (4) Judge Hanen expected the question to be re-examined on appeal.

Judge Hanen was right: the question was re-examined on appeal, before the Fifth Circuit Court of Appeals. A three-judge panel threw substantial judicial shade (“I’m just surprised that your lead case isn’t even in your brief”) on the arguments presented against Judge Hanen’s order.

The Fifth Circuit is expected to issue a ruling in the coming days. Judge Hanen’s order is likely to be upheld. That is how we got here.

What is the Biden Administration trying to do about it?

According to news reports, the Biden Administration is preparing to issue orders to ICE to de-prioritize deporting DACA recipients, in the event of a loss before the Fifth Circuit.

By doing this, the Biden administration would be reasserting its prosecutorial prerogatives in a way that would be more difficult for the courts to block. As both Judge Hanen and Justice Roberts emphasized in their respective opinions, DACA has two components – the discretion not to prosecute, and the grant of benefits – chiefly, employment authorization – consequent on that decision not to prosecute. The Biden administration is likely working to preserve the first of those two components in the event that the second component is removed from play.

What might happen next?

We have no crystal ball, but we predict the following.

  • Judge Hanen’s summary judgment order will be upheld by the Fifth Circuit Panel.
  • A request for en banc rehearing will immediately follow to the entire Fifth Circuit.
  • No matter what the outcome of that en banc rehearing is, the losing side will file a petition for certiorari before the Supreme Court.
  • Justice Roberts’ fine head of hair will increasingly resemble Henry Wadsworth Longfellow as this litigation rumbles on.

We’re here to answer all questions, major and minor. Ask them in the Comments. We’d love to hear from you.

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