Judge refuses to shut down DACA, but suggests it's unlawful

President Barack Obama dreamed up the DACA program (pun intended) back in June of 2012. That’s more than six years ago now. We were fighting about it before he’d even written the executive order and we’re still fighting about it today. The latest developments in the ongoing legal battle provide more evidence that even the courts aren’t quite sure what to do about it. Roughly one month ago a judge in D.C. found that not only was the program legal but further ordered the President to reinstate it within 20 days. This week a different judge, this time in Texas, refused to immediately shut down the program but did strongly suggest that it might be unconstitutional and may rule against it when the question comes before him at trial. (NBC News)

A federal judge in Texas declined Friday to order an immediate halt to the Deferred Action for Childhood Arrivals program, the Obama-era initiative that has allowed 700,000 young people, known as “Dreamers,” to avoid deportation…

On Friday, [U.S. District Court Judge Andrew] Hanen devoted most of his 117-page opinion to agreeing with Texas that the Obama administration did not have authority to impose the DACA program. But he declined to issue an injunction stopping its enforcement, concluding that the challengers waited too long to seek the order.

“As the Justice Department has consistently argued, DACA is an unlawful attempt to circumvent Congress, and we are pleased the court agreed today,” said U.S. Department of Justice spokesman Devin O’Malley.

The judge’s ruling is a bit confusing on a couple of levels. After going into great detail about how he felt that the Obama administration had no authority to create the program, thus rendering it (probably) unconstitutional, he turned around and said that it would be unfair to terminate it after six years. The plaintiffs (in this case the Justice Department) supposedly “waited too long” to challenge it, according to the judge, suggesting that he would have struck it down if the case had been brought to him in 2012 or 2013. Of course, at that point, the Justice Department was being run by a person appointed by the guy who created the program. It seems as if there’s something of a disconnect there.

But even if we ignore that portion of the explanation, if something is unconstitutional at the time of its creation, how does it later become constitutional only by virtue of surviving for six years? Is there some sort of statute of limitations on violating the Constitution that I missed somewhere along the line?

In any event, the case is proceeding to trial and it sounds as if the judge may well strike the program down at that time. That sets up a long-delayed battle before the Supreme Court. You’ll recall that back in February SCOTUS was asked to hear a challenge to the DACA program out of California. With two brief sentences, they refused to hear the case, allowing the findings of a lower court (which supported the program) to stand. Now, if we wind up with a court in D.C. ordering it to be reinstated and a court in Texas ruling that it has to be terminated, the Supremes will have little choice but to take up the question. And by then it will be an even more conservative court, assuming Kavanaugh is already seated.

This has been a long and winding road ever since Barack Obama started it, but we may finally be approaching the end.