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Everybody take a chill pill...this case is not over yet.

Yes, it was a victory for the Rule of Law and a setback for 0bama’s totalitarian regime. But the case is NOT over yet. The case before the SCOTUS was an appeal from a preliminary injunction by Judge Hanen of the District Court. The case is now sent back to him for an actual trial on the merits. While the 5th Circuit opinion stacks the case against the government, there is a way that 0bama’s regime still wins.

In order to grant the preliminary injunction, Judge Hanen had to find that Texas had a substantial liklihood of prevailing on the merits of the case. He ruled that Texas would. The reason for finding this is that the government was calling the DAPA program an exercise of prosecutorial discretion, which is exclusively the province of the Executive, and has been granted to the Executive by act of Congress (8 U.S.C. 1852). Prosecutorial or agency discretion in determining who gets subject to removal proceedings is NOT reviewable by the Courts. Judge Hanen looked at the similar DACA program, and found that Homeland Security had NEVER denied an application for deferral under that program when the minimum requirements were met. In other words, that program did not exercise discretion and created a new class of resident alien, which only Congress can do. He said since the programs were similar, DAPA would be the same thing, and therefore, no discretion, the program is judicially reviewable, creates a new class of alien, and was not authorized by Congress. His order granting the preliminary injuction was a prediction that this would be the evidence and ruling at trial.

But since the Judge issued his order granting the preliminary injunction, the government ignored his order. That’s the whole issue before the District Court now regarding the attorney discipline sanctions against the U. S. Attorneys for unethical conduct. They lied to the Court when they said they had stopped the DAPA program, and they had actually processed several thousand additional applications under DAPA. The reason they did, which hasn’t come to light yet, is that they also randomly denied a bunch of applications who otherwise met the qualifications. The government was trying to create the evidence they needed to show that they were in fact exercising prosecutorial discretion. Therefore, their argument will go, exercising discretion = matter committed to agency discretion under Chevron USA v. National Resources Defense Counsel = not reviewable by the Courts = 0bama regime wins, Texas loses.

The next shoe to drop in the trial court will be whether Judge Hanen will allow the government to use this evidence they created in defiance of a Court order to win their case, or whether he decides to exclude it as a sanction for disobeying the Court’s order.

Ulitmately, this case will be decided by the November Election. If Clinton wins, the case goes back to the SCOTUS, with the decisive 5th vote being a Clinton appointee. If Trump wins, the DAPA memorandum is rescinded by Executive Order, the case is dismissed and Texas (and the American people) win by default.

It ain’t over yet.