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Judge Rules Trump Administration Must Start Accepting DACA Applications
by Axios
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  • Susan
    08/05/2018
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    For those saying that DACA is unconstitutional, please check what you think is fact. Here's one FACT I found: "The short answer is, the Supreme Court has yet to rule on its constitutionality, so calling it “unconstitutional” is presumptive. And while the program has vocal opponents, legal experts largely argue that the program is not only constitutional but based on commonplace practices." Or "There’s debate among experts on whether DACA is constitutional or not, but there is agreement that a court ruling on the constitutionality of the program has not been issued. "There has been no court decision holding that DACA itself is unconstitutional," Anil Kalhan, an associate professor of law at Drexel University. A lawsuit to challenge the 2012 DACA was dismissed for lack of standing, and that decision was upheld by the U.S. Court of Appeals for the Fifth Circuit, Kalhan said. "So there was never any adjudication on the merits," he said. "To my knowledge, no court has ruled DACA 2012 as unconstitutional and the one to even reach the court was dismissed on jurisdictional grounds," concurred Shoba Sivaprasad Wadhia, a law professor and director of the Center for Immigrants’ Rights Clinic at Pennsylvania State University. Wadhia and more than 100 other immigration law professors and scholars wrote a letter to Trump providing legal analysis on the executive branch’s legal authority to implement DACA. Other experts from the University of California also told us courts have not stricken down DACA as unconstitutional. "It's a straightforward fact that no court has declared DACA unconstitutional and that the one appellate court that considered a related program declined to address the issue," said Amy Spitalnick, spokeswoman for Schneiderman. Texas and 25 other states won a lawsuit against the Obama administration by having a federal district judge block the implementation of an expanded version of the 2012 DACA and of another deportation reprieve program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). An appeals court upheld the ruling, and in 2016 the Supreme Court ruled 4-4 on the case, leaving in place the lower court's ruling. But when those programs were temporarily enjoined by the district court in Texas, it was not on constitutional grounds, Kalhan said, "but rather based on a conclusion that Obama administration should have instituted the policy using notice and comment rule-making, rather than using the more informal guidance document that it issued." A final, binding precedent even on that basis was not set either, since it was only a preliminary injunction and the Supreme Court deadlocked, Kalhan said. "And even then, some aspects of DAPA and the DACA expansion may be different from DACA in relevant ways that bear on legality—it has never been fully established the two programs stand on identical legal footing," Kalhan said."

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