Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas issued an Interlocutory Appeal Order Friday in the latest iteration of Texas v. U.S. While he had found the Deferred Action for Childhood Arrivals (DACA) program likely violates the Administrative Procedures Act (APA), he declined to issue a preliminary injunction, but certified his decision for review by the Court of Appeals for the Fifth Circuit.
In his order, Judge Hanen ruled that the plaintiff States "have clearly shown that" DACA "likely violates the substantive aspects of the" Administrative Procedures Act (APA). He also held that DACA "likely violated the APA by failing to undergo the notice-and-comment procedures required by the APA" because the program was not a procedural rule and not a general statement of policy.
While the court held that the States had "satisfied the requirement that they show a likelihood of success on the merits and irreparable injury," it denied injunctive relief because of their "unreasonable delay in seeking relief." Judge Hanen noted that reasonable minds could differ on this issue because the States did act as soon as they found out that DACA was not being phased out, as the Department of Homeland Security (DHS) had earlier stated.
The court did hold that injuries would occur to the States if the injunction that they sought was denied, but found that the injuries to the government and intervenors would be "more profound and significant," and therefore a preliminary injunction was "not in the best interest of the public." Judge Hanen noted, however, that "reasonable individuals could conclude that no person or entity could have justifiably relied upon any aspect of the DACA program." In addition, he held that "a reasonable argument could be made that a prospective injunction should have been issued" as to new applications, because no future applicant has relied "or even has a right to rely on a "revocable program that at least nominally conferred no substantive rights."
He stayed the case for 21 days to allow the parties pursue an interlocutory appeal before the circuit court, noting that a contrary determination by the circuit court on his findings would spare the parties an expensive trial that would be difficult to present.