Late last night, as the DC area braced for a snowstorm, a federal judge in Brownsville, Texas granted a temporary injunction to the executive action that President Obama announced in November. The expanded Deferred Action for Childhood Arrivals (DACA) was set to go into effect tomorrow, with the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) starting up in May, so a quick ruling was expected after Judge Andrew Hanen held a hearing last month. And based on how that hearing went, it’s no surprise that Texas and the 25 other states suing the federal government succeeded in stopping the executive action at least temporarily.

Now, a few things to note about the ruling:

  1. It was exceedingly thorough, with a 123-page memorandum opinion that makes clear that, even though this is the very earliest stage of the case, the judge recognizes that his words will quickly be scrutinized by national decison-makers and legal analysts.
  2. The opinion spends about 60 pages on standing, concluding that the issuance of drivers licenses to DAPA beneficiaries imposes a real cost on the states. The court rejected the claim that the states also have standing because DAPA will cause an influx of illegal immigrants that will cause economic harm. My colleague Alex Nowrasteh last summer described how DACA (the “executive DREAM Act” that was the precrusor to DAPA) didn’t cause the surge in unaccompanied minors. The purported injury is similarly speculative here. (I’ll also note that Cato’s opposition to REAL ID is mentioned in this discussion because the federal REAL ID requirements put an even greater burden on states with respect to issuing drivers licenses.)
  3. The rest of the opinion focuses on the Administrative Procedure Act, ultimately ruling that the Department of Homeland Security didn’t go through the proper notice-and-comment rule-making procedures before it promulgated what are in effect new immigration regulations.
  4. To reach that conclusion, the court found that Congress did not delegate sufficient discretionary authority to DHS to implement such broad-based deferred action (which even in individual cases isn’t explictly authorized by statute, just implicitly allowed with Congress’s presumptive acquiescence). It also rejected the “presumption of unreviewability” of non-rule-making agency actions because DAPA represents a “complete abdication” of the government’s duty to enforce the laws as written. “DAPA does not simply constitute inadequate enforcement; it is an unannounced program of non-enforcement of the law that contradicts Congress’s goals.”
  5. Judge Hanen stresses how important it is to preserve the status quo because, once granted, the DAPA program will be very hard to reverse and its benefits exceedingly difficult to clawback. It would be a public-policy nightmare.
  6. There is no constitutional discussion at all. Because the court enjoined DAPA based on statutory/​administrative grounds, it did not need to reach the question of whether the president had failed to “take care that the laws be faithfully executed.”

For whatever it’s worth, I agree with each of these points.


This decision can be expected to force the government into a very quick appeal to the U.S. Court of Appeals for the Fifth Circuit. Most likely, the government will call for an immediate en banc hearing of all 15 active judges. Indeed, it’s quite possible that the government will simultaneously seek Supreme Court review — though the Court has been unwilling to jump in and preempt lower-court consideration despite such pleas in other high-profile litigation such as the various Obamacare and same-sex marriage cases. If the Fifth Circuit acts quickly, we could still see the case reach the Supreme Court before it takes its annual summer recess, although that would mean an extremely demanding briefing, argument, and opinion-writing schedule.


Given that there’s no real urgency here — DAPA doesn’t respond to any particular emergency and the case doesn’t involve the striking down of a piece of legislation or other government action on which other federal programs depend — the more realistic scenario would be to expect a Fifth Circuit ruling before the summer, then briefing over the summer, and argument the first week of the new term in October (or perhaps a special session in September). Of course, the Fifth Circuit could reverse the district court and allow DAPA to proceed, in which case Supreme Court review isn’t guaranteed. But this is less likely than the scenario I previously described because the Fifth Circuit has the highest ratio of Republican-to-Democrat nominees of any federal appellate court, 10:5, so chances are that, whether as a panel or en banc, the court will affirm the injunction.


What will be the ultimate result here? It’s anybody’s guess, but given that Cato filed a brief — on behalf of supporters of comprehensive immigration reform — supporting the lawsuit, I certainly hope that the final ruling, at whichever level it comes, mirrors Judge Hanen’s. Our immigration system is broken, but it’s up to Congress to fix it. The president simply doesn’t get more power when Congress is gridlocked. 


For more, see Josh Blackman’s “instant analysis” — and read the scholarly opinion!