The Biden administration is using a recent federal appeals court decision that put the brakes on states’ ability to stop national immigration policies in its fight to lift a judge’s nationwide block on new applications to the Deferred Action for Childhood Arrivals (DACA) program, which grants work authorization and deportation protection to undocumented people who were brought to the United States as children.
Lawyers with the Biden administration’s Department of Justice (DOJ) last week directed the Fifth Circuit Court of Appeal’s attention to a recent but unrelated Sixth Circuit ruling that found that a group of states did not have grounds to sue or block the federal government’s immigration enforcement priorities directing Immigration and Customs Enforcement (ICE) and other Department of Homeland Security (DHS) agents to prioritize people who pose a public safety or national security threat for deportation over other immigrants without criminal records.
The Biden administration pointed out that the Sixth Circuit’s analysis of the power of states to sue in this context is relevant to the DACA case, which involves a lawsuit by several states to end the DACA program. In both the enforcement priorities case and the DACA case, a group of states sued the federal government, saying that the program caused additional costs and burdens for the states. In both cases, the states won nationwide injunctions at the district court level, which blocked the policies and programs from going into effect or being enforced anywhere in the United States. The government appealed the district court’s decision to the relevant Circuit Court of Appeal in both cases.
In the DACA case, District Judge Andrew Hanen blocked new applicants from applying to the DACA program in a ruling last July with a nationwide injunction. The government appealed the decision that fall, and the Fifth Circuit – the Circuit Court for Texas, Louisiana, and Mississippi, and the most conservative circuit court of appeals in the country, bar none – is currently reviewing the case.
In the enforcement priorities case, the Sixth Circuit ruled that the group of states did not have standing to sue – much less to stop – the administration’s immigration enforcement priorities. As the DOJ lawyers stated in their filing, “[t]he [Sixth Circuit] rejected the proposition ‘that any federal regulation of individuals through a policy statement that imposes peripheral costs on a state creates a cognizable … injury.” A cognizable injury (often referred to as an injury in fact) is a requirement for a person or party to have standing (grounds) to sue in federal court, and means that the party can show they suffered a violation of a legally protected interest that is concrete and recognizable, and not simply hypothetical.
In its filing with the Fifth Circuit, the DOJ noted that the Sixth Circuit ruled that relatively minor costs to a state of a federal government program are not enough to give the state standing to sue to block the program. This is a reference to the similar facts in the DACA case, which was also brought by a group of states claiming the program caused them additional costs and burdens.
The administration also argues that Judge Hanen, the district court judge in the DACA case, exceeded his authority by issuing a nationwide injunction, instead of striking only the parts of the law he thought were not legal, or tailoring the injunction to only apply to the states that sued. The DOJ pointed out that the Sixth Circuit had found the district court judge in that case had also overstepped his authority in granting a nationwide injunction.
The Fifth Circuit is not bound by the rulings of other Circuit Courts of Appeals like the Sixth, but it is not uncommon for judges in different states and circuits to take “judicial notice” of the findings of other courts. The Fifth Circuit could agree with the Sixth, or it could choose to disagree and issue an opinion with different reasoning. When the Courts of Appeal disagree it is frequently called a “circuit split,” which could make the question “ripe for review” by the U.S. Supreme Court.
The DACA program was created in 2012 by President Barack Obama, and was subject to several attempts to end it by President Donald Trump. The status of the program has changed multiple times as lawsuits have reinstated and then ended again the possibility for new applications to the program, and altered the length of time Employment Authorization Documents (EAD) are valid for DACA holders.
The case, State of Texas v. United States, No. 21-40680, is still under review at the Fifth Circuit; there is not an anticipated date for decision at this time.