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Here’s what’s gonna happen:

The four main issues in the case are:

1. Does Texas have standing to sue?
2. Is the case “justiciable,” meaning, has Congress granted the Homeland Security the discretion to do what it did? (If so, the case is not reviewable).
3. Did Homeland Security exceed it’s authority, or violate the statutory Notice and Comment Rule, when it implemented the DAPA program?
4. Is the DAPA program a violation of the “Take Care” Clause of the Constitution?

Most likely, the Court will split evenly 4-4 all down the line on all four issues. That means the 5th Circuit Court of Appeals decision remains the law. No nationally binding precedent is created. Since the case is before the court on an appeal from a preliminary injunction, the case goes back to Judge Hanen for a trial on the merits, but with sufficient direction from the 5th Circuit opinion that stacks the deck against the government in the trial.

Except for one wild card: Much of Judge Hanen’s original decision to grant the preliminary injunction and bar the government from proceeding with the DAPA program while the case was in litigation was based on the factual findings from the DACA program, which is slightly older but similar to DAPA. DAPA is intended by the government to be an exercise of prosecutorial discretion, which is not reviewable by the courts. DACA purports to be the same thing, but the evidence was that the DACA program never exercised that discretion. Everyone who applied and met minimum qualifications was approved. That was the basis of Judge Hanen’s ruling that Texas was likely to prevail on the merits, because there was no evidence of actual prosecutorial discretion.

Judge Hanen’s most recent fights with the U. S. Attorneys office is that they lied about upholding his order barring them from implementing the DAPA program. The purpose of implementing the program in disregard of the Court order was not humanitarian, it was evidentiary. I can guarantee that in allowing about 100,000 people to participate after the Court told them not to, Homeland Security randomly DENIED several applications, therefore creating evidence that prosecutorial discretion was at work, and salvaging their case at trial. That’s the real story behind the ethics case still pending. The question will be whether Judge Hanen allows the government to present evidence they created in direct violation of a court order.

Now, under this scenario, the case goes to trial and then goes back up on appeal to the SCOTUS, where 9 judges decide, the decisive 9th vote being a Clinton appointee. Or, the case is moot and never sees a trial because President Trump rescinds the DAPA program by executive order, and the case is dismissed but Texas, and all of America wins because Trump kills a program that should never have been created.

The other less likely scenario is that you will get a 4-1-3 opinion. Four justices say there was standing, four say no. The 5th Circuit opinion stands on that issue. However, the Justiciability issue is more troubling, and I could see Kennedy switching on that issue and concurring with the other four liberal justices. In that event, five justices say “no case” and the case is dead, permanently, on the spot. It goes back to Judge Hanen with orders to dismiss Texas’ suit, and the DAPA program continues until Trump rescinds it. The Constitutionality of the other issues is not reached.