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After conservative ruling, what's next for protecting Dreamers?

Republicans can't pass a bill to derail DACA protections for Dreamers, but they could turn to a controversial Texas judge.


It was six years ago when Republicans hoped to derail the Obama administration's DAPA (Deferred Action for Parents of Americans) program, designed to extend protections for undocumented immigrants whose kids are American citizens. The policy's GOP opponents knew exactly which court would be most likely to give them the outcome Republicans wanted to see.

The case reached U.S. District Court Judge Andrew Hanen, a George W. Bush appointee, who blocked DAPA from advancing. It was around this time that Ian Millhiser referred to Hanen as "one of the most viciously anti-immigrant judges in the country." Slate's Mark Joseph Stern described Hanen as "one of the most notoriously partisan conservatives in the federal judiciary."

Of course, Republicans also hoped to derail the Obama administration's DACA (Deferred Action for Childhood Arrivals) program. Take a wild guess which district court they filed the case in.

A federal judge in Texas on Friday declared illegal the federal program that has allowed nearly 800,000 young people brought to the United States illegally as children to avoid deportation and remain in the country. U.S. District Court Judge Andrew Hanen in Brownsville, Texas, said the Obama administration failed to follow federal administrative rules in launching the Deferred Action for Childhood Arrivals program in 2012.

All things considered, the ruling could've been worse. The conservative jurist blocked the Department of Homeland Security from granting any new applications for Dreamers seeking DACA protections, but Hanen also left intact the protections for immigrants already receiving protected status.

The case was brought by Texas and eight other Republican-led states.

The day after the ruling was issued, President Joe Biden said his administration will appeal the ruling, which he described in a written statement as "deeply disappointing."

The president added, however, that this should also spur action on Capitol Hill.

In his statement, Biden urged Congress to move forward with legislation to permanently protect those covered by the program. "Only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve," the president said.

"I have repeatedly called on Congress to pass the American Dream and Promise Act, and I now renew that call with the greatest urgency," Biden said. "It is my fervent hope that through reconciliation or other means, Congress will finally provide security to all Dreamers, who have lived too long in fear."

The reference to "reconciliation" was of particular interest: while Republican filibusters will make it impossible to approve protections for Dreamers through traditional legislative means, there's growing talk that Democrats might try to include immigration provisions to the "human infrastructure" legislation taking shape on Capitol Hill.

Friday afternoon's ruling out of Texas makes this more likely -- if it's procedurally possible.

While we wait for the road ahead to come into focus, it's worth noting that the controversy serves as a reminder of why Republicans have placed so much emphasis on the federal judiciary in recent years. GOP officials haven't been in a position to legislate DACA protections away from Dreamers, but by moving the courts to the right, Republicans don't need legislation -- they simply need allied judges who can serve as a governing proxy.

The appeal in this case now heads to the 5th Circuit, where Republican-appointed judges have a two-to-one advantage over Democratic-appointed judges.