Trump's taking another run at DACA. And a Texas case is a real threat to the program.

"We will be submitting enhanced papers shortly," the president said after the top court blocked him.
Demonstrators rally in support of the Supreme Court's ruling in favor of the Deferred Action for Childhood Arrivals (DACA) program in San Diego on June 18, 2020.
Demonstrators in San Diego rally in support of the Supreme Court's DACA ruling on Thursday, June 18, 2020.Sandy Huffaker / AFP via Getty Images

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By Pete Williams

WASHINGTON — Hundreds of thousands of young people in the DACA program are resting easier after the Supreme Court ruled that the Trump administration wrongly tried to shut it down — but Dreamers' troubles are far from over.

Friday brought a new one, from President Donald Trump himself, while the judge in an ongoing lawsuit brought by Texas and other states to end the program ordered all sides on Thursday to file new paperwork next month.

"We will be submitting enhanced papers shortly in order to properly fulfill the Supreme Court's ruling," Trump tweeted.

That undoubtedly means the Department of Homeland Security will try again to shut the program down. The Supreme Court had said on Thursday the Trump administration's earlier attempt to end the program failed to adequately address how it would affect DACA recipients and whether other options were available.

Chief Justice John Roberts, writing the majority opinion in the 5-4 ruling, left the door open for the government to try again, and the Trump tweet indicates the president considered that not simply an opportunity but an invitation. Trump called the court's decision a "ruling & request," although the court did not ask the government to do anything.

Any new attempt to end the program would immediately trigger lawsuits, and it's likely that DACA supporters could persuade a federal judge to impose a nationwide injunction that would block the government's move and keep the program going while the court battles play out. That's how DACA was kept alive after the Trump administration first tried to shut it down in 2017.

The Deferred Action for Childhood Arrivals program has allowed nearly 800,000 young people, known as Dreamers, to avoid deportation and remain in the U.S.

Another potential threat to the program is a lawsuit filed two years ago by Texas and six other states claiming that President Barack Obama exceeded his authority when he launched DACA in 2012. U.S. District Court Judge Andrew Hanen of Brownsville has already said Obama went too far.

Hanen declined last fall to issue an injunction stopping enforcement of the program, concluding that the challengers waited too long to seek the order, but the lawsuit remains alive. On Thursday, he ordered all sides in the case to file papers by July 24 indicating where they believe the case now stands in light of the Supreme Court decision.

Thursday's ruling may have given the states a boost, because one question in the Texas lawsuit is whether DACA is merely an exercise of discretion in deciding how to enforce the law. The Obama administration originally described it that way in launching the program, saying it was setting priorities for immigration agents by directing them to focus their energy on criminals and terrorists, not young people in college, the workforce or the military.

If that's what DACA is, then it would be harder for the states to win in court, because the executive branch has broad authority to set its own enforcement priorities. But Roberts' majority opinion said the program is different.

"DACA is not simply a nonenforcement policy," he wrote, because the Obama administration set up a detailed system for evaluating each applicant's qualifications and gave those in the program a renewable two-year relief from any concern that they would be targeted for deportation. "It created a program for conferring affirmative immigration relief."

For that reason, Tom Goldstein, a Washington lawyer who argues frequently before the court and publishes SCOTUSblog, said the Texas case is a far bigger threat to the program than any renewed effort by the White House to shut it down.

"Ironically, Thursday's Supreme Court decision sparing DACA also likely paved the way for its eventual doom," he said.

He called Trump's tweet a largely empty gesture.

"Even if the administration really did try again to shut it down, and I doubt it will, that process would take several months and could not be accomplished before the election," Goldstein said. "People should not be thinking that Thursday's ruling settled the issue. Ultimately, the fate of the Dreamers can only be decided by Congress."

Another lawsuit, also on hold awaiting a Supreme Court ruling, is a challenge brought by the NAACP to the Trump administration's effort to shut DACA down. Proceedings in that case will resume, and it might produce a ruling favorable to DACA's defenders.

There's no deadline for the White House to act in trying again to shut the program down, but Ken Cuccinelli, a senior Homeland Security official, said Thursday that the administration would act quickly. In response to Trump's tweet Friday, he tweeted, "We're on it."