DACA: Litigation Status Update

This Legal Sidebar provides a status update for various lawsuits concerning the Deferred Action for Childhood Arrivals initiative (DACA) and the decision by the Department of Homeland Security (DHS) to rescind that initiative.

• As things currently stand under federal court orders in three cases, DHS must process applications for DACA relief from individuals who have obtained DACA relief in the past, but not from individuals who would be first-time DACA enrollees.
• This status quo likely will remain in place at least until the Supreme Court issues a decision in one of the cases. The High Court has yet to grant review in any of the three cases. Assuming the Court does grant review in at least one case, it probably would not issue a definitive ruling until late spring or early summer of 2019 at the earliest.

An earlier Legal Sidebar analyzed some of the primary legal issues in the lawsuits. Future CRS products may supplement that analysis to address subsequent court decisions and other legal developments.

Litigation Overview

On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum announcing its decision to rescind DACA, which the Obama Administration implemented in 2012 to provide temporary relief from removal and work authorization, among other benefits, to certain unlawfully present aliens who arrived in the United States as children. As justification for the rescission, DHS relied upon a letter from then-Attorney General Sessions concluding that DACA was illegal—specifically, that it lacked "proper statutory authority," was "an unconstitutional exercise of authority by the Executive Branch," and would likely be enjoined in "potentially imminent litigation."

Following this announcement, litigation ensued at cross purposes. DACA recipients and other parties, including states and universities, filed lawsuits in four federal district courts challenging the rescission as unlawful. Two of those district courts have issued nationwide preliminary injunctions that currently require DHS to continue processing applications for DACA relief from individuals who have obtained DACA relief in the past (renewal applicants), but not applications from individuals who would be first-time DACA enrollees. The U.S. Court of Appeals for the Ninth Circuit upheld one of those injunctions on November 8, 2018; the government's appeal of the other injunction is pending before the Second Circuit. The order of a third district court would require DHS to process both first-time and renewal applications for DACA relief, but the district court has stayed the relief for first-time applicants pending the outcome of the government's appeal to the D.C. Circuit. Thus, DHS currently must process applications for DACA relief only from individuals who have obtained DACA relief in the past.

Even if the government wins its appeals in the Second and D.C. Circuits, the preliminary injunction affirmed by the Ninth Circuit would preserve this status quo (barring legislative action or a rehearing in the Ninth Circuit). Thus, the status quo will likely remain in place at least until the Supreme Court issues a decision in one of the rescission cases, which could occur in late spring or early summer of 2019 if the Court agrees to hear an appeal of one of the cases. In an effort to ensure Supreme Court review before the Court's current term ends in June 2019, the government filed petitions on November 5, 2018, asking the Court to grant certiorari before judgment in all three cases. Supreme Court rules provide that such petitions will be granted only in cases of "imperative public importance," and the Supreme Court already rejected one earlier government petition that sought review before judgment in the Ninth Circuit case. Now that the Ninth Circuit has issued its decision, however, the government will likely file a reformulated certiorari petition, and it is possible the government could obtain Supreme Court review in that case before the end of the current term.

On the flip side, Texas and six other states filed a separate lawsuit arguing that DACA is unlawful and seeking to bar DHS from continuing to grant DACA relief. The case is before a federal district judge in Texas who in 2015 barred the Obama Administration from implementing both an expansion of DACA's coverage and a different deferred action initiative—the Deferred Action for Parents of Americans and Lawful Permanent Residents initiative (DAPA)—which would have protected certain unlawfully present aliens with U.S. citizen or lawful permanent resident children. (The Fifth Circuit upheld that district court ruling, and an equally divided, eight-member Supreme Court affirmed without opinion in June 2016). On August 31, 2018, the district court held that the states were likely to succeed on the merits of their claims. But the court declined to issue a preliminary injunction barring DHS from continuing to grant DACA relief because, in the court's view, neither public nor private interests favor a preliminary injunction against an initiative that is now six years old. Still, given its positive assessment of the merits of the states' claims, the court may well grant the states permanent injunctive relief against DACA when the case is ready for final resolution. It is difficult to estimate when the case could reach that stage. The district court contemplated in one order that the case could require an "expensive" trial that will come only after a "protracted delay."

Collectively, the lawsuits to preserve DACA and to force its termination raise the related issues of whether DHS offered an adequate justification for the DACA rescission and whether DHS lacks, as former Attorney General Sessions concluded, statutory and constitutional authority to administer DACA. Enactment of statutory protections for certain childhood arrivals would likely moot the lawsuits in substantial part or entirely, but a range of legislative proposals to this effect—including those considered during open debate on the Senate floor in February 2018 in the wake of a government shutdown over the childhood arrivals issue—have not resulted in new law. According to some reports, Members of the 115^th Congress continue to discuss similar proposals.

Tables of Ongoing Cases

Cases Challenging DACA Rescission

Case Challenging DACA Implementation