Fri Sep 29, 2023 by Anil Kalhan
United States v. Texas, Regents, and the Roberts Legacy on DACA (Dorf on Law)
Earlier this month, Judge Andrew Hanen—the Bush-appointed judge in Texas who, back in 2015, Republican state elected officials handpicked to give legal effect to their political attacks on the Obama administration’s immigration policies—issued his latest ruling invalidating DACA, the Deferred Action for Childhood Arrivals initiative. Compared to earlier episodes in the long-running litigation over the Obama-era deferred action initiatives, the responses to Hanen’s latest ruling have seemed somewhat muted—not least, perhaps, because the outcome was entirely expected. News organizations and commentators have devoted relatively limited attention to Hanen’s ruling, and statements criticizing the decision have seemed to carry a certain amount of resigned fatigue. DACA’s most outspoken political opponents have also seemed mostly preoccupied by other matters. Even Hanen himself seemed to lack in this decision the kind of big xenophobic energy that he often exhibits in his immigration-related opinions.
Hanen’s most recent decision is his fourth significant pronouncement declaring Obama-era deferred action initiatives unlawful, and the decision rests on more or less the same flawed legal premises as each of his previous rulings. Back in 2015, as I discussed and analyzed at length both here at Dorf on Lawand subsequently in an article in the UCLA Law Review Discourse, Republican state elected officials successfully steered a lawsuit to Hanen—the only active judge hearing cases in his south Texas judicial division, and one with an extensive, well-documented record of anti-immigrant hostility—to challenge the legality of the Obama administration’s 2014 efforts to expand DACA and create a new initiative, DAPA, which would have made deferred action available to additional categories of undocumented immigrants. Hanen quickly enjoined the 2014 initiatives, and that ruling was validated twice by divided Fifth Circuit panels. In each instance, the Fifth Circuit opinions were written by Judge Jerry Smith: first, when the government sought a stay pending appeal, and subsequently, when the government appealed the merits of Hanen’s preliminary injunction decision. (I discussed and criticized the Fifth Circuit’s rulings here and here.) After the Supreme Court granted certiorari in 2016, it divided 4-4, thereby establishing no precedent but leaving the Fifth Circuit’s decision in place. As a result, the Obama administration never implemented DAPA, and the Trump administration formally terminated the initiative after assuming power in 2017. The original 2012 DACA initiative, however, was never subject to serious legal challenge and remained in place.
Hanen’s second encounter with the Obama-era deferred action initiatives came in the midst of the Trump administration’s efforts to terminate DACA. As lawsuits proceeded in other jurisdictions seeking to block DACA’s termination, Republican state elected officials returned to Hanen seeking essentially the opposite relief: a ruling declaring that DACA is unlawful and an injunction requiring the initiative to be immediately terminated. Hanen delivered on the first request, writing a lengthy opinion concluding that DACA violated the Administrative Procedure Act both procedurally, for not having been created through notice-and-comment rulemaking, and substantively, because it was purportedly not authorized by the immigration statutes. The opinion relied upon essentially the same reasons as those upon which the Fifth Circuit had relied when invalidating DAPA. However, Hanen declined to enjoin the initiative. Ultimately, of course, the Supreme Court vacated the Trump administration’s rescission of DACA in 2020 when—by a 5-4 margin, with Chief Justice John Roberts writing for the majority—it decided Department of Homeland Security v. Regents of the University of California.
Immediately upon assuming office in 2021, President Biden issued an executive order directing officials to take steps to “preserve and fortify” DACA. While those efforts were in progress, Republican officials rushed back to Hanen yet again, and in July 2021 he ruled yet again that in its original form, DACA violated the APA both procedurally and substantively. A Fifth Circuit panel consisting of Judges Priscilla Richman, James Ho, and Kurt Engelhardt affirmed Hanen’s ruling. However, while the appeal was pending, the Biden administration completed a notice-and-comment rulemaking process to implement DACA through regulations scheduled to take effect in October 2022. It was this more recent, rulemaking-based incarnation of DACA that Hanen deemed unlawful in his fourth, latest deferred action ruling earlier this month, relying again on many of the same legal arguments that have been leveled against the initiative for many years at this point. While the use of notice-and-comment rulemaking took the procedural APA arguments against DACA off the table, Hanen nevertheless concluded that the new incarnation of DACA “is flawed for the same substantive reasons as the 2012 DACA Memorandum.” As in 2021, however, Hanen nevertheless stayed his order as to existing DACA beneficiaries, thereby permitting the Biden administration to accept, process, and grant their renewal applications.
A certain amount of Andrew Hanen fatigue, therefore, seems entirely understandable. Reading Hanen’s lengthy, often strident opinions on the deferred action initiatives has long had a Groundhog’s Day quality, since in many respects the core substantive issues in the litigation have not changed very much over the years. As a result, there often has seemed very little to be surprised about or new to say about Hanen’s decision-making. However, coming after the Supreme Court’s decision in Regents, Hanen’s most recent two rulings do provide occasion to say something about the politicized immigration decision-making of John Roberts, for they draw attention to some of the ways in which Roberts’s opinion—celebrated by many DACA supporters at the time for preserving the initiative—may in fact now be contributing to DACA’s demise.
That should not be altogether surprising. As Professors Adam Cox and Cristina Rodríguez wrote soon after the case was decided, Roberts’s opinion was “as ominous as it [was] encouraging,” insofar as it appeared to provide a “roadmap” for DACA to be successfully terminated and to create barriers to “a future Biden administration’s ability to pursue a humanitarian path going forward.” (In a subsequent law review article, Professor Rodríguez suggested that the hurdles created by Regents might also “undermine the very act of policy change” for future incoming administrations. The Regents-based claims made in the flood of lawsuits filed by Republican state officials seeking to entrench and insulate Trump’s immigration agenda from his successor’s administration suggests that Rodríguez’s concern has been borne out to some extent, although those politicians almost certainly would have charged forward with their lawsuits even if Regents had never been decided.)
Three years later, conservative lower court judges like Hanen and Richman have indeed read Roberts’ opinion to bolster their anti-DACA positions—perhaps not in precisely the manner that Professors Cox and Rodríguez predicted in every last particular, but certainly to similar effect. Professors Cox and Rodríguez anticipated a scenario in which future administrations, litigants, or courts would draw upon Regents to argue that an initiative like DACA could permissibly carve out and confer deferred action itself—a longstanding means of exercising prosecutorial discretion, which provides tentative, discretionary forbearance from enforcement action—or something like it, but could not permissibly provide recipients of deferred action with other collateral “benefits,” such as the ability to apply for employment authorization, Social Security, or Medicare.
At least so far, anti-immigration litigants and judges such as Hanen have not taken up Roberts’ invitation to declare victory by accepting a hollowed-out version of DACA along these lines. Instead, they have invoked Roberts’ opinion more opportunistically and selectively to reinforce their existing, full-throated arguments calling DACA (and by extension, similar initiatives) more fundamentally into question altogether. That, too, should not be particularly surprising.