The future of the Deferred Action on Childhood Arrivals program that allows the children of illegal immigrants to remain in the United States moved one step closer to a Supreme Court decision after a federal district court judge said there’s no question in his mind that the program violated federal law.
In a case brought by Texas and supported by other states, Judge Andrew Hanen of U.S. District Court for the Southern District of Texas refused to strike down the program.
Hanen said an injunction to block the program was the wrong step because of the effect an injunction would have while the law’s ultimate fate is still being decided.
He also said that states opposing the program could not show irreparable harm in letting the program continue because they waited too long to bring their suit, Fox News reported.
1/ Judge Hanen declined to issue a preliminary injunction in the DACA case, but strongly hinted he would issue a declaration that DACA was unlawful. This decision is perhaps the least chaotic approach to tee this issue up for prompt #SCOTUS review.
— Josh Blackman (@JoshMBlackman) August 31, 2018
“Here, the egg has been scrambled,” Hanen wrote, according to CNN. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”
Hanen said the popularity of the program was not relevant, only whether it was legal.
“This court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action,” he wrote. “If the nation truly wants to have a DACA program, it is up to Congress to say so.”
Hanen agreed with the legal argument made by Texas that the 2012 action taken by the Obama administration to create DACA violated the Administrative Procedure Act and wrongly allows the federal government to ignore immigration law.
As such, Texas Attorney General Ken Paxton said he expects DACA will eventually be quashed.
“We’re now very confident that DACA will soon meet the same fate as the Obama-era Deferred Action for Parents of Americans program, which the courts blocked after I led another state coalition challenging its constitutionality,” Paxton said in a statement.
“President Obama used DACA to rewrite federal law without congressional approval. Our lawsuit is vital to restoring the rule of law to our nation’s immigration system. The debate over DACA as policy is a question for lawmakers, and any solution must come from Congress, as the Constitution requires,” he said.
Hanen set up an appeal to the U.S. Court of Appeals for the Fifth Circuit which is likely to be a stepping stone to the U.S. Supreme Court, where DACA’s legality could finally be decided.
The Justice Department said it supported Hanen’s decision.
“As the Justice Department has consistently argued, DACA is an unlawful attempt to circumvent Congress, and we are pleased the court agreed today,” DOJ spokesman Devin O’Malley said in a statement.
President Donald Trump tried to abolish DACA administratively but was blocked by a court ruling that kept the program in place. Trump has urged Congress to revise DACA, but lawmakers have been unable to agree on any plan.
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