Judges Probe DACA’s Harm to States in Fifth Circuit Showdown (1)

A federal appellate panel offered diverging interpretations of US Supreme Court precedent Thursday, pressing government attorneys on how they should dictate a state challenge to federal removal protections and work authorization for half a million immigrants brought to the country as children.

The Justice Department, defending Biden administration rules for the Deferred Action for Childhood Arrivals program, argued that the high court’s 2023 decision in US v. Texas undermined the standing of the eight Republican-led states that sued to block the program. It’s the second time in two years that a dispute over DACA has come before the US Court of Appeals for the Fifth Circuit, which previously found unlawful the executive memorandum that established the immigration protections a decade earlier.

Circuit Judge Jerry E. Smith said that reading of US v. Texas doesn’t overcome the Fifth Circuit’s rule that previous panel rulings not be overturned without a more explicit instruction from the top court’s justices.

“We don’t budge on our past cases unless there’s been an unequivocal statement,” Smith, a Ronald Reagan appointee, told attorneys arguing in support of the program. “I just don’t see how you get far on that argument.”

But Judge Stephen A. Higginson said that ruling on immigration enforcement priorities marked a “sea change” in how courts handle challenges to federal immigration policy.

“You’ve got to find a history and tradition of courts being empowered to decide cases of that nature, that is, foreign policy,” said Higginson, a Barack Obama appointee.

At stake in which interpretation wins out is the ability to live and work in the US for more than 535,000 Dreamers who received DACA grants before the program was frozen to new applicants by a court order in 2021. Corporate giants including IBM Corp. and Google parent Alphabet Inc. have warned the Fifth Circuit that ending DACA would slash the country’s gross domestic product as employers lose skilled workers educated in the US.

Standing Claims

In last year’s US v. Texas ruling, the high court found that Texas and Louisiana don’t have standing to sue over the executive branch’s immigration enforcement policies.

Republican-states led by Texas have argued they nevertheless have standing to challenge DACA because they’re harmed from increased spending on social services and policing as a result of the program’s creation.

Those claimed fiscal injuries have no direct ties to the DACA program because they rely entirely on health-care and education expenditures that anyone in the state is entitled to, DOJ attorney Brian Boynton told the panel.

“They think if DACA is rescinded, it will decrease the population of Texas and therefore their expenditures will go down,” he said. “It cannot be that a policy that just changes a population gives rise to standing.”

But the Supreme Court’s June 2023 ruling is irrelevant to DACA because the opinion carved out standing in “a situation like we have here where there is a non-enforcement policy combined with benefits,” Joseph N. Mazzara, assistant solicitor general for the State of Texas, told the panel.

Mazarra told the panel that standing was also established in the Fifth Circuit’s 2022 DACA ruling, which still binds the court, he said.

Severing Rule

US v. Texas left open the possibility that states could have standing to challenge enforcement policies in some cases, including those where the government grants benefits such as employment authorization in addition to adopting enforcement guidelines. Judges, including Higginson, questioned whether that punched a hole in the government’s standing arguments.

Boynton said the harm alleged by Texas was still too indirect, but also told the Fifth Circuit that the Biden administration’s DACA rule included a provision making clear that the deferred action policies be allowed to continue even if employment authorization for recipients was deemed unlawful.

That position was rejected by intervenors who joined the government in defending the program at Thursday’s hearing.

“The court would be affecting other regulations that have been in effect since the 1980s,” said Nina Perales, vice president of litigation at the Mexican-American Legal Defense and Education Fund, told the panel.

But the court isn’t required to leave the program in place just because of the severability provision, Mazarra said. And without it, DACA is essentially an immigrant “registration system,” he said.

“We’re not challenging their discretionary authority,” Mazarra said.

Nationwide Injunction?

While the states haven’t asked for a stay to be lifted on benefits for current DACA recipients, attorneys also sparred over whether the program should be blocked for the whole country when only Texas has tried to show injury.

New Jersey Solicitor General Jeremy Feigenbaum told the three-judge panel that since the program’s creation in 2012, “extraordinary reliance interests have developed” for program recipients as well as their employers and a quarter million children who rely on their income. Those factors make a nationwide injunction in the case inappropriate even if the Fifth Circuit finds Texas can show harm, he said.

Higginson asked whether “a single judge” should be able to dictate that DACA recipients would have to leave New Jersey and 21 other states that have claimed benefits from the program. But those arguments don’t change the analysis of whether a nationwide injunction should apply, Mazarra said.

Maintaining the injunction sought by Texas would mean DACA recipients will have nowhere to go, said Judge Edith Brown Clement, a George W. Bush appointee.

“Texas citizens wouldn’t move anywhere else because it wouldn’t do them any good?” she asked.

The case is Texas v. USA, 5th Cir., No. 23-40653, oral arguments held 10/10/24.