On Friday, in Texas v. United States, Judge Andrew Hanen ruled against issuing a preliminary injunction shutting down the DACA program.
The ruling was as welcome as it was unexpected. Hanen was the judge who ended the Obama administration’s plans to create a broad national program to assist three million undocumented immigrants. That program, called Deferred Action for Parental Accountability (DAPA), was attacked by 26 states, with Texas as the lead. The suit against DACA was filed by the State of Texas legal team with the same court in anticipation of the same result.
Texas argued that DACA violated the same provisions of the law as DAPA, and that the decision in Hanen’s court should be the same in both. In his decision, Hanen wrote that the State of Texas is likely to prevail on the merits of its claim. However, he said that an injunction in this case can only be issued following a full hearing on the merits of the case. With limited facts, the case was not yet suitable for a preliminary injunction.
The judge rejected the contention by Texas that he needed to rule immediately to stop irreparable harm to the state’s coffers. He noted that DACA had been created by the Obama administration in 2012, and that Texas had not sought to end the program until 2017. Judge Hanen wrote that a “delay in seeking an injunction has been viewed as… an indication that the alleged harm does not rise to a level that merits an injunction.” The court ruled that a preliminary injunction cannot be issued in favor of the plaintiffs “due to their delay in pursuing the claims they now bring.”
The judge also ruled that while the law might be similar on the cases against DACA and DAPA, the situations are vastly different. The lawsuit against DAPA was filed against a program that was not yet in effect and that, presumably, few immigrants had relied on the program in making their plans for the future. Unlike DAPA, the court said, DACA is “a program that has been ongoing for more than six years.” If DACA is enjoined, the status quo will be upset, Hanen said. An injunction halting DACA would immediately deprive those with DACA “of their ongoing lawful status and their ability to work,” according to the judge.
Hanen continued, saying that ending DACA “could cause the DACA recipients to lose their ability to travel within the United States and many other benefits that flow from lawful presence.” They would also be subject to arrest by ICE and removal from the United States.
Hanen wrote that the impact of granting the injunction would be irreversible if the court later found that the DACA recipients should have prevailed. Some might be deported and many more would lose their jobs or suffer other great harm. The judge said he worried that if he granted the preliminary injunction, he could not later “unscramble the egg” if a full hearing later showed that Texas should not have prevailed.
At least for now, those with DACA can continue to renew their work permits. It is unlikely that DACA will end in 2018, but the future for the program is less clear. There will likely be a full hearing on the case next year.