I previously blogged about the 9th Circuit’s arguments in the Arizona Dream Act Coalition case, that involves (indirectly) the legality of DACA (not DAPA). Today, the 9th Circuit issued supplemental briefing about DACA and the Take Care Clause. More importantly, they invited DOJ to file a brief of whether DACA violates the Take Care clause.

In light of the foregoing, the parties are ordered to file simultaneous supplemental briefs within fourteen (14) days of the date of this order, addressing: (1) Whether any issue of preemption is properly before this court, if so,

what it is, and how it should be resolved, and whether it is appropriately addressed as a threshold matter before reaching Plaintiffs’ equal protection claim, to avoid ruling on constitutional grounds; and

(2) Whether the DACA program violates the separation of powers doctrine and/or the Take Care Clause.

The panel invites the United States to file an amicus curiae brief expressing its views on these issues. The amicus brief should be filed no later than seven (7) days after the parties have filed their supplemental briefs. See Fed. R. App. P. 29. In the event the United States chooses not to file an amicus brief, the court requests that the United States notify the Clerk, in writing, as soon as that decision is made.

This is significant, because it potentially tees up something of a Circuit Split. The Fifth Circuit stay panel in Texas v. United States did not reach the constitutional issue, but the merits panel may. (Judge Elrod asked several questions about it during oral arguments, and directly inquired what level of Youngstown DAPA belongs in). If the Ninth Circuit reaches the Take Care clause, it will focus on DACA, not DAPA. However, much of the record in Texas v. United States focuses on DACA. In any event, this is something to keep an eye on.