A federal judge in Washington, DC, has just reopened the door a crack to young unauthorized immigrants who qualified for relief from deportation and work permits under the Deferred Action for Childhood Arrivals (DACA) program, which the Trump administration wound down in September.
But the administration has 90 days to shut that door again.
In a ruling released Tuesday night in the case NAACP v. Trump (combined with the case Trustees of Princeton University v. Trump), DC District Judge John Bates continued a streak of legal defeats the Trump administration has suffered in their attempts to end the DACA program.
Two federal judges had already issued preliminary injunctions against the administration, forcing the government to allow immigrants who already have work permits under DACA to apply for two-year renewals.
Judge Bates went further. His ruling would force the Trump administration to allow immigrants who qualify for DACA — by being between the ages of 15 and 31, having arrived in the US before 2007, being enrolled in school or having a degree, and not having a significant criminal record — to apply for work permits even if they never applied before September 2017.
Crucially, though, Bates’s ruling doesn’t go into effect for 90 days. In the meantime, the judge is giving the Trump administration a chance to redeem itself. If Trump’s Department of Homeland Security issues a new memo in the next 90 days that offers a stronger legal argument for ending DACA than the one it’s provided so far, it can avoid having to grant new DACA permits.
The ruling could end up reanimating DACA in full, against the administration’s wishes. Or it could give the administration a lifeline that will help it persuade appeals courts to overturn the defeats it’s already suffered. It all depends on what happens in the next 90 days.
Immigrants who currently have a valid work permit under DACA — or who had one as of September 5, 2016, which has since expired — are currently allowed to apply for a two-year renewal of their work permit and protection from deportation. That’s the result of a January court ruling from a federal judge in California, in another lawsuit against the administration. (A judge in New York, in yet another lawsuit, has subsequently ruled the same way, meaning that the Trump administration will have to overturn both rulings to stop processing renewals again.)
If Judge Bates’s new ruling goes into effect in late July, though, it would go further than that. It would allow people who qualified for DACA but didn’t apply for it the opportunity to apply for a two-year work permit for the first time.
And it would allow DACA recipients to apply for permission to leave the country and be allowed in when they return — allowing some DACA recipients to clear a hurdle blocking their path to full legal status they’d otherwise qualify for.
Potentially, this could affect hundreds of thousands of people — estimates indicate that as many as 1 million people qualified for DACA while it was in place but never applied for it. White House Chief of Staff John Kelly characterized them as “too lazy to get off their asses”; more likely, they couldn’t afford the $495 application fee or were afraid to give the government their information. Even if the door were opened for them to apply now, those things might still be true, so it’s not clear how many of the people who didn’t apply before would apply now.
It might be more meaningful for the thousands of immigrants who have turned 15 since September 5 — they were too young to apply for DACA while it was in place, and because the Trump administration stopped accepting new applications immediately in September, they weren’t allowed to apply once they qualified. The Center for American Progress estimated that as of March 5, 23,000 immigrants had become DACA-eligible after the administration shut the door on them.
But DACA hasn’t reopened yet. Bates delayed his ruling for 90 days to give the Trump administration a second chance. If the administration takes it, the ruling might never go into effect.
The heart of Bates’s legal argument is that the Trump administration claimed it had to end DACA because it was unconstitutional — but “that legal judgment was virtually unexplained,” the judge wrote, “and so it cannot support the agency’s decision.”
For one thing, the Trump administration passed judgment on DACA’s unconstitutionality before any federal judge had actually said so themselves. Federal courts put a later and broader deferred action program, one for parents of US citizens and green card holders, on ice in 2015 — but DACA was explicitly not included in that ruling. And the only legal challenge against DACA itself, back in 2012 when the program was first started, was thrown out of court.
Additionally, in the lawsuits against the end of DACA, the administration is now claiming that the courts don’t even have the authority to rule over its decision to rescind the program. For Bates, the fact that the administration ended DACA because it was unconstitutional but is now telling the courts that ending DACA is outside the scope of constitutional review set off red flags.
This is important because Bates isn’t just rejecting the reason the Trump administration gave him. He’s giving the Trump administration 90 days to come up with a better one: “The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful.”
Whether the court would acceptthat alternate rationale is an open question — the ruling doesn’t exactly set out a checklist for what an acceptable DACA rescission would look like. (This bears a resemblance to the Supreme Court case over the travel ban, which also raises questions about when, and how closely, the federal courts can scrutinize executive branch policy.)
Even if Bates did rule that the Trump administration’s new argument was strong enough to let the end of DACA go forward, it wouldn’t overrule the federal judges in New York and California who have forced the administration to start accepting renewals again. But it might strengthen the administration’s hand as it appeals those rulings. Neither of the previous opinions reliedon the argument that you can’t presume something is unconstitutional, like Bates just did, but they both noted it, and it appears to have factored into their general judgments that the administration ended DACA in a rash and capricious way.
Armed with a stronger legal grounding for killing DACA due to the DC ruling, the Trump administration might force appeals courts on the coasts to take a second look at the case for ending DACA, and to consider whether the person acting rashly was not the administration but the judges who ordered renewals to start up again.
If the Trump administration finds a new reason that DACA shouldn’t go back into effect, it will be incontrovertibly clear that the administration is responsible for killing the program.
In September, Trump was able to muddy the waters of political blame: While Attorney General Jeff Sessions took the “bad cop” role of formally announcing DACA’s sunset, Trump tweeted false reassurances to immigrants. The president was willing to pull the trigger on ending DACA when it looked like Congress would either step in to fix it or take the blame by failing to do so.
If it were up to Trump now, maybe the Department of Homeland Security wouldn’t bother to argue that DACA should be put on hold.
But it’s probably not up to Trump.
Technically, the decision rests with Kirstjen Nielsen, Trump’s homeland security secretary and a protégé of predecessor John Kelly (now Trump’s chief of staff); like Kelly, Nielsen has gotten more comfortable in the role of immigration enforcer as she’s been in the job.
Because the judge is asking specifically for a legal argument, though, the role of killing DACA again might fall to the same person who announced its death the first time: Sessions. Nielsen may not have a strong preexisting opinion that DACA needed to die. Sessions absolutely does.
Judge Bates just gave them another 90 days to make their best case, and they are all but guaranteed to take it. The question is what comes next.