Justice Department lawyers laid out a path on Friday night that could force the legal dispute over the future of the Deferred Action for Childhood Arrivals program forward more quickly — and possibly to the Supreme Court as soon as this summer.
While lawsuits over the Trump administration's efforts to end DACA have led to multiple nationwide injunctions keeping DACA partially in effect, Texas and a handful of other states filed their own lawsuit seeking to do the reverse: have DACA declared unlawful.
While agreeing with those states' argument against DACA, the Justice Department lawyers wrote in a brief filed Friday night that granting an injunction in the Texas-led case would create "inconsistent obligations" for the federal government — and would lead the Justice Department to "seek stays of all the DACA injunctions in the respective courts of appeals and the Supreme Court."
That's a lot, so this is how the Justice Department got there.
The Texas-led DACA lawsuit echoes the lawsuit Texas and a much larger group of states had brought during the Obama administration to end Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). US District Judge Andrew Hanen — the judge who had heard the DAPA case and ruled strongly against the Obama policy — is now hearing the states' DACA challenge.
The states asked Hanen for a preliminary injunction halting enforcement of the policy, and in a Friday night filing, DOJ agreed.
"The United States agrees with the State of Texas and other Plaintiffs that the policy known as Deferred Action for Childhood Arrivals (DACA) is unlawful," the first sentence of the brief read.
The Justice Department brief goes on to explain the administration's decision to "orderly wind down" DACA and spends a short two pages of the brief detailing how exactly DACA is unlawful, in the department's view.
Here's where it gets complicated.
The brief goes on to detail the challenges to the decision to end DACA — challenges that led to injunctions by federal courts in California and New York that halted the "wind-down," in part. Specifically, they barred the Trump administration from stopping DACA renewals.
Those injunctions, DOJ argued Friday night, "would conflict with a preliminary injunction — and especially a nationwide one — in this [Texas-led] case, subjecting the United States to inconsistent obligations."
Simply put: DOJ would have the orders from federal courts that it continue DACA — and an order from a different federal court that it halt DACA.
Although the Justice Department does argue "that courts have typically held" in "similar situations" that "the appropriate course is for a district court to refrain from issuing a conflicting injunction," DOJ nonetheless goes on to offer its view on what Hanen should do "if this Court decides that preliminary injunctive relief is appropriate."
This, then, could lead to the Supreme Court.
This issue — the "inconsistent obligations" concern — leads to what could quickly become the main effect of the Texas-based lawsuit: pushing all of the cases, and final resolution of the issue, more quickly to the Supreme Court.
In February, the Supreme Court denied DOJ's request that it hear an immediate appeal of the injunction out of the federal court in California — instead forcing the department first to seek an appeal in the US Court of Appeals for the 9th Circuit.
Now, however, in its brief to Judge Hanen, the Justice Department is setting up a path to quickly return to the Supreme Court.
If Hanen does grant an injunction in the Texas-led case, the DOJ lawyers wrote, "it should stay such order for 14 days so the United States can seek stays of all the DACA injunctions in the respective courts of appeals and the Supreme Court."
A hearing on the states' request for a preliminary injunction is currently set for July 17.