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DAPA and DACA Aren’t Starting Any Time Soon

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The Fifth Circuit has held that the preliminary injunction preventing President Obama’s DAPA and DACA from proceeding may stand until the Fifth Circuit hears the merits of that aspect of the case on July 6th.  A district judge ordered the preliminary injunction because he believed the implementation of the program would produce numerous hardships on the states.  The implementation of the program would require the states to issue driver’s licenses and other documents to millions of undocumented immigrants.  If the program is allowed to proceed, millions of undocumented immigrants will be able to obtain protection from deportation.  They will also be able to obtain work permits.

Whether the parties will ever argue the merits of the case is still very much in question.  One of the President’s main arguments is that this is the type of policy question that is resolved through politics, not law suits.  It is a question of legal standing.  Standing is the right to sue over a particular harm.  The law of standing is very complicated.  Previous suits against the President’s immigration policies have been dismissed based on the President’s current standing argument.  Furthermore, conservatives are often more likely to find a party lacks standing.  If the Fifth Circuit finds the states lack standing, then the entire law suit must be dismissed.  The court would in essence be saying that the answer is to be found at the ballot box, not the court house.

Even if the suit is allowed to proceed and address the underlying case, the states will still need to establish that the President has overstepped his proper boundaries in administering the laws of the United States.  If the case proceeds to this stage of the argument, there is a possibility that parts of DACA and DAPA will be upheld, while others are struck down.

Ultimately, millions of undocumented immigrants and the rest of the country can only wait until the courts rule on these two key arguments.  For now, waiting is all anyone can do.

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