On Monday evening, 11/09/2015, the 5th Circuit Court of Appeals failed to surprise anyone, issuing a 2-1 decision that affirms the current injunction against the Executive expansion of DACA. >>See decision here<<
The reader may recall that this blog has attempted to provide some coverage of this increasingly fraught showdown. See explanation of DAPA and litigation here. As it is, the more than 4 million persons that the DACA expansion would temporarily and minimally “protect” are again left in the lurch, without relief from the specter of separation from their families, not even to mention their more than 6 million children who stand to lose their parents. >> See statistics under FAQs<< >>more statistics<<
Both the Opinion and Dissent are lengthy affairs and I’m not sure a detailed reading or analysis of either is necessary — both camps essentially rehashed the same arguments leading up to this week’s decision.
Justice Jerry Smith, writing the Court’s decision for the majority, underlined that in the view of court, the expansion of DACA exceeds the powers conferred to the Executive through the INA and defies the APA’s “notice-and-comment” requirement.
In a vigorous dissent, Justice Carolyn King states that “a mistake has been made” – she points out that when historically compared to other Executive Actions that have effected changes in U.S. Immigration Policy, neither DACA nor the DACA expansion are particularly exceptional – various “deferred action” schemes have previously been applied to U.S. Immigration Law and/or Policy since the 1980s (they were never challenged by lawsuit). Slip Op. at 86, 124, King also reasserts a core argument that the government has been making all along – an argument that King does not believe has been adequately rebutted by the 5th Circuit decision. Namely, King does not believe the claims brought by Texas and the cabal of 25 other states are justiciable considering that the Expansion has been enabled by a Memorandum that technically offers no more than guidance or a framework. Id at 76-77. Further, the dissent points out that the Memorandum does not impose any affirmative duties on officials or on the states, nor creates “positive law”; King also noted that since the Expansion calls for a case-by-case execution of the Memo’s principles, notice-and-comment is not necessary. Id at 73.
Going back to what she views as the essential non-justiciability of the claim, King does well to criticize the tenuousness of the Standing-theory proffered by Plaintiffs. Specifically, the majority sustained Plaintiffs’ theory that Standing is conferred solely on the basis of the potential costs to be incurred for providing DAPA recipients with drivers’ licenses. King found this to be a very weak (if not illusory) basis for Standing which effectively gives Texas et. al constitutionally impermissible “special solicitude”, especially considering that all the other “theories” of Standing heretofore broached by Plaintiffs have either been abandoned or not adopted by any of the prior decisions in the course of this litigation. Id at 79-80. Indeed, as to Standing, it appears that Plaintiffs have thrown a bunch of spaghetti on the wall and a morsel of sauce has stuck, barely. Id at 79-83.
This writer thinks it probable that if the appeal is filed before the end of the current SCOTUS term, certiorai is likely to be granted to hear this case. We shall see.