The Impact of Mississippi’s DACA Challenge on Texas’s DAPA Challenge

April 8th, 2015

Marcia Coyle writes in the National Law Journal about how the 5th Circuit’s decision tossing Mississippi’s challenge to DACA may impact Texas’s challenge to DAPA. In contrast with my friend Stephen Legomsky, I do not think it makes that much of a difference, but for the first time in a while, the DOJ gets some good news on this case.

As the U.S. Department of Justice readies its defense of President Barack Obama’s immigration executive order in the U.S. Court of Appeals for the Fifth Circuit, its arguments have drawn an unexpected boost from a panel of that same court.

A unanimous three-judge panel in Crane v. Johnsonheld on Tuesday that the state of Mississippi and several federal U.S. Immigration and Customs Enforcement agents lacked standing to challenge the 2012 Deferred Action for Childhood Arrivals program, known as DACA.

“This decision has major implications for the appeal pending before the same court in Texas v. United States,” said immigration law scholar Stephen Legomsky of Washington University in St. Louis School of Law.

The government may find “slight” encouragement in the ruling, said Josh Blackman of South Texas College of Law. Still, he cautioned, the records in the two cases are very different.

Washington University’s Legomsky, who joined an amicus brief supporting the administration in the Texas case, said, “This conclusion wipes out the entire premise—that DACA and DAPA are not discretionary—for Judge Hanen’s determination that the APA required notice-and-comment rulemaking.”

Mississippi’s inability to show that the DACA program would decrease its net revenue rather than, as the administration claimed, increase it, applies to Texas’ arguments on standing, he added.

However, South Texas’ Blackman, who field an amicus brief in the district court supporting Texas on behalf of the Cato Institute, said, “I think the difference between the two cases is the record.” Mississippi filed its DACA challenge a week after the program was announced in 2012, he said.

“The record is very sparse,” Blackman said. “Mississippi had almost no evidence it would be injured by DACA. There was no track record. It relied on a 2006 study on the effect of illegal immigration on the state. It couldn’t prove concretely what the impact would be.”

Texas, to the contrary, has amassed a “huge file” establishing an impact, he said. The state had “very detailed affidavits from a number of state officials on the specific costs of applicants in terms of drivers’ licenses, down to the penny.”

On the alleged discretionary nature of the program, he added, “We’ve now had DACA for three years and almost everyone gets granted.”

On the standing ruling in the Mississippi case, the administration “doesn’t get much,” he argued. The “most troubling portion” of the opinion for Texas is the panel’s comments on the discretionary aspect of the program.

“Based on the record the court had before it, that was probably accurate, but the record before Hanen is different. Maybe the federal government has a slight benefit,” he said.

Panel rulings bind other panels within the circuit court.

While it is certainly true that conclusions of law from one panel are binding on another, the question of abdication is a factually-intensive question, based on the record before the court. A different panel could come to a different determination.

I should also note that contrary to some chatter that the Crane panel may also be the panel for Texas’s case, a colleague who is a frequent litigant in the 5th Circuit writes that the “5th Circuit’s Internal Operating Procedure’s don’t allow for games with assignments like the 7th or 9th Circuits.” (He means Posner and Reinhardt).