Most of you probably have heard by now that a panel of Fifth Circuit judges ruled 2-1 against the White House’s motion to stay the injunction that’s blocking the implementation of the expanded DACA and the DAPA programs. That’s really bad news for the millions of people potentially eligible. The judges in the case ruled that Texas having to issue drivers licenses gives that state standing to sue since it is being injured by the policy. Apparently, the drivers license fees paid by Texans doesn’t cover the true costs of a license. Texas could charge DACA and DAPA recipients a higher fee, but the judges felt that just having to establish two fees was an injury. Yeah, that seems a stretch to me as well.
In any case, the news media seems to be pushing the storyline that it’s now up to the US Supreme Court. That’s only partially true. Today’s denial can (and should) be appealed. But there’s another hearing in the Fifth Circuit in July to rule on the merits of the injunction itself and we don’t know which panel of three judges is going to hear the case. The White House got a really bad draw with this first panel – a Reagan and George W. Bush nominee along with an Obama appointee. Hopefully, the next one will be better.
Another option for the White House is to simply cut the losses and go for notice and rulemaking, something many have been arguing should have been done in the first place. As we just saw in the H-4 EAD litigation, you’ve got a lot less of a leg to stand on when challenging a regulation issued through this process.
In any case, the actual underlying authority for the President to use deferred action is still sound. It’s really unfortunate that we’re stuck waiting. The ironic thing is that the pain being inflicted by the GOP on immigrants will come back to them in next year’s election when Hillary Clinton will likely become the first woman to be elected thanks to the GOP getting a record low Hispanic vote. And with that will come four more years of Democrats getting to appoint the judges (as well as continuing DACA and DAPA when the legal fight is eventually won). There are many in the GOP who recognize this and are calling on the party to stop this impending disaster. Their warnings should be heeded.