Feb 17, 2015

Posted in Uncategorized

Instant Analysis: Injunction in Texas v. United States

At 10:22 p.m., Judge Hanen issued his long-awaited decision in Texas v. United States, temporarily enjoining DHS from implementing DAPA. (Disclosure: I filed a brief in support of Texas.) The injunction is here. The opinion is here. The 123-page decision is extremely thorough. It spends over 60 pages on standing, and the remainder on the procedural APA claim. It doesn’t even address the Take Care clause.

The opinion has tw0 main parts. First, it finds that the states have standing. Second, it concludes that DHS lacks the discretion to institute DAPA.

The standing analysis tracks closely the arguments advanced by Texas, which I addressed here. In short, DAPA provides legal presence to aliens, who can then obtain drivers licenses in the states. This court concluded (correctly in my mind) that these licenses impose a cost on the states. The DOJ previously argued in the 9th Circuit that it was unconstitutional for Arizona to exclude DACA beneficiaries from receiving drivers licenses. The court found a similar analysis estops the government from claiming Texas can change its laws to deny DAPA beneficiaries licenses. The court (correctly in my mind) rejects the argument that DAPA will cause an influx of illegal immigration. This argument was too speculative. The standing analysis is really thorough. Contrary to what you may think, I am fairly confident this will stand up on appeal. The merits, is another story.

The merits analysis begins on p. 68. On p. 92, the court explains that Congress knows how to “delegate discretionary authority,” and has not done so here.


On p. 98, the court finds a “complete abdication” under Heckler v. Cheney.


98 99

The court also makes a point I address in Part II of my series of DAPA–the Secretary, and not individual officers set the the policies. There is no individual discretion (p. 108).


In an extended footnote, the court explains that DHS could not identify a single applicant denied for DACA due to discretionary factors.

109a 110

Although the court doe snot reach the constitutional issue, the “abdication” analysis under the APA claim mirrors what a constitutional “Take Care” analysis would look like. So the court tipped his hand how the constitutional analysis would come out.

The final portion of Judge Hanen’s opinion stresses over, and over again, that a preliminary injunction is warranted to maintain the status quo. This is an important point that has been stressed with the same-sex marriage litigation. Allowing 4 million people to sign up for DAPA cannot be undone. The President has said so himself. From p. 121:


I’m certain much of the analysis you will read focuses on Judge Hanen’s previous writings about immigration and executive power. The 123 page decision is extremely thoughtful and comprehensive. Unlike the drivel from the District Court in Pennsylvania that reached out to decide an issue that was not before him, Judge Hanen has authored an authoritative and measured analysis of a really difficult legal issue.

What next? As I noted in this post in December, once the preliminary injunction issues, this case will rocket up to the 5th Circuit, and to SCOTUS by the end of this term. The Court will have to resolve this issue, and cannot let it linger on the certiorari docket till next term. As if this term couldn’t get any more intense!

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  • Pingback: Breaking: Preliminary Injunction Granted in Texas v. United States | Josh Blackman's Blog()

  • Boom goes the dynamite.

  • alohasteve

    Video: Breaking Now! Amnesty On Hold – Judge Blocks Obama’s Immigration Policy – Judge Andrew Napolitano (we have the actual ruling posted as well):


    ps. Link Exchange?

    • guest4455

      You immigrant hating conservatives are going to receive a monumental shellacking next year.

      • yeah, yeah…that’s what you said last year…Just watch the total reversal of all your communistic agenda beginning in 2016 with conservative House, Senate, and Executive branches…and a wave of SCOTUS appointments to replace the retiring activist judges.

      • jmaie

        What about us non-hating non-conservatives who simply believe that DAPA is not good policy?

      • shatzy48

        You left out the word illegal. It’s not that conservatives hate immigrants, rather we do not like that the law has been broken. There is a legal process for entering the United States, and sneaking across the Rio Grande is not part of that process. We certainly don’t think that people who have broken the law should be rewarded with the ability to file for three years of retroactive Earned Income Tax Credits as the President’s plan would allow. Tell me, would you reward a bank robber by allowing him to keep the proceeds of his theft?

        • guest4455

          Naw, you conservatives hate immigrants plain and simple. Don’t worry thought, when all those hispanics turn out in 2016 to vote against you racist right wingers, it will be a beautiful thing.

          • shatzy48

            You ignorant fool. My grandparent were Russian peasants who fled the Czar. They came here legally, started businesses and were respectable citizens. And by the way, how are all those Hispanics going to turn out to vote if they’re not registered? But I gues in your mind they don’t have to be registered, they can just come here and do what they want and we pick up the tab. Wake up!

          • Helion Cruz

            No need to get angry, but, what was legal then? Where they White? Educated? What kind of peasants? The Hispanics trying to come into the US today, are inacceptable to the “American Ruling Class” the White Republican Servants of the Upper 1%. They are Brown, speak Spanish, and did what was unthinkable, told them that they would not let themselves be treated like their modern N***ers. This was unacceptable to them. This coupled to having a Black president has made the White Republican Servants of the Upper 1% go crazy with ire.

        • jb

          they could try to marry a governor’s girl friend. Windsor basiclly says the feds can’t police sham marriages. What a state seeks to protect as long as it’s not man and woman. Indeed ney york could set up a whole immigrattion racket. They could ‘reward’ ppl for marrying illegals….then the feds would have to get into marriage and bingo federal preemption. Ahh but the court said what the state seeks to protect….what if sanctuary city states seek to protect sham marriages for immigration…..how is that different from all the ‘rights’ ppl wanting ssm claim.?? All those rights that were based on the presumption of procreation hence a next generation that makes america an on going concern. No I don’t get it. we give wives a bump up on social security on the premise they bore kids….stayed home with them. some how this benifit becomes a right to ssm where childbearing is impossible.? so we are suppose to look the otherwy just because scientists discovered ivf? had they not there is no way ssm would be fundamental in an ordered society. indeedy not sure how purposely denying a kid to a motheer or father benifits society at all. other than a couple of gay ppl getting a pet. that’s what they are arguing basically os that a kid doesn’t have a right to a mom and dad….but two people have a right via marriage to a kid. sixck. twisted.

      • TravisJSays

        As an immigrant-loving (literally) conservative, who happens to think we should enforce immigration law, I’m all for an immigrant-loving conservative doing better than an immigrant hating one.

      • ClearthoughtNY

        …hey gutless…got a name…didn’t think so…pop back on …look forward to the debate…you are a tool…

        • jb

          I am wondering what he means by ‘next year’ …. No doubt the 6.5 million 112 year olds will have been purged by then. Btw did your mom name you ‘clearthought’ or did you get an updated birth cert and seal the original?

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  • Nancy Morris

    Yes, the federal government is expected to immediately ask for a stay of the injunction, but that doesn’t mean the 5th Circuit will accept the appeal. This is a “preliminary injunction,” and those normally cannot be appealed unless the issuing district court specifically grants permission to appeal (a so-called, “interlocutory appeal.”). I have seen no report that this district court has granted permission for an interlocutory appeal and I see no reason why he should. In the absence of such district court permission to appeal a defendant must wait until there is a final ruling from the trial court before appealing, That means waiting until AFTER the trial is completed. In this case the trial could take a long time.

    So, yes, the decision from a higher court (the 5th Cir) will probably take a few weeks, but at that point the 5th Circuit will probably just decline jurisdiction until the trial is completed and a final district court order is issued. Think maybe over a year.

    And keep in mind, this is a question of appellate jurisdiction that is entirely distinct from the substance of the case. It’s just embarrassing that the White House – in the form of Josh Earnest – cannot keep jurisdictional and substantive matters straight, leading to the utterly bizarre claim that a court holding a Texas sheriff to lack jurisdictional standing to challenge these immigration programs somehow affirmed the legality of the programs as within the president’s powers.

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  • Bailers77

    “I’m certain much of the analysis you will read focuses on Judge Hanen’s previous writings about immigration and executive power.”

    There isn’t too much (yet at least) analysis that doesn’t rely on “he was appointed by Bush!” or “he’s from Texas!”

    Thank you for the write-up. My personal feeling, as has been focused on here, is the specific granting by class of deferment and of additional legal rights. The Administration overplayed their hand by making it a centerpiece of political policy instead of just focusing limited enforcement resources.

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  • Helion Cruz

    I cannot try to pass myself as one as learned as the one writing this blog; I ‘m simply a graduate of the University of Puerto Rico Law School, but the years I practiced I did Criminal Law – with its close relationship with Constitutional Law. It makes me wonder why the blogger believes this decision is solid and will withstand the scrutiny of the 5th Circuit, when it bases its decision on a perceived action that is not occurring, has not occurred, and the learned Judge cannot have any way of knowing it will happen, as we cannot see into the future.
    The criteria of if it smells like whatever, and looks like whatever, then it must be whatever, ceased being proof without a field test. And, it doesn’t matter who says it, acts that will happen in the future, but haven’t happened, do not create a crime.

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  • Diamonds Direct

    Thank you for such a comprehensive look at immigration.
    Thankfully, many countries provide opportunities to people who are either looking for a better life, or just a change of surroundings. Often, there are lots of hurdles to successfully relocating, but the movement of people across the globe has made each country stronger. For information on immigration law, visit http://www.onlineinternationalservice.com/ this immigration law website. is a new site that dedicates themselves to providing information, instructions, resources, and tips regarding U.S. immigration law.

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