Texas and allies open new challenge to DACA

Returning to the same south Texas courthouse where a Texas-led coalition won a sweeping victory against a key immigration policy of the Obama Administration more than three years ago, Texas and some of its former allies moved on Tuesday to scuttle the last remaining part of that policy – the so-called “DACA” program.

The new lawsuit against the Deferred Action for Childhood Arrivals program was assigned to the same judge who ruled for the challengers earlier, U.S. District Judge Andrew S. Hanen, who sits in the federal courthouse in the Texas border town of Brownsville. Most of Hanen’s prior ruling withstood a challenge in the Supreme Court on a four-to-four split of the Justices nearly two years ago.

The Trump Administration, reacting to a threat last year from Texas to file the kind of lawsuit that was submitted Tuesday, decided to end DACA altogether last September.  But the program continues because three other federal judges – in California, Washington, D.C., and New York – have temporarily kept it in existence.   Those orders, now or soon to be under review in three separate federal appeals courts, declared that President Trump and his aides very likely violated federal law in acting to shut down DACA.

Repeated efforts by DACA supporters in Congress to pass a new law to protect the program’s recipients and assure them they won’t be deported have failed in the face of opposition by the President.  As long as the lawsuits continue in the federal courts, DACA recipients continue to benefit from it – unless the new lawsuit in Texas succeeds.

The new lawsuit, with six other states joining Texas, did not directly seek to challenge what those other judges had done (Judge Hanen would have no authority to overturn those orders because they deal with the shutdown of DACA not its original form).

Instead, the 74-page lawsuit was aimed at DACA’s existence from its very beginning by the Obama Administration in June 2012, arguing that the program was always illegal under federal immigration laws and always was unconstitutional.  A victory in the case, though, would potentially set up a conflict among federal judges that ultimately would have to be worked out by the Supreme Court.

The lawsuit contended that, in initiating DACA, President Obama violated the Constitution’s mandate that the president must carry out the laws that Congress enacts.

“If ever there was a violation of the President’s duty to ‘take care that the laws be faithfully executed,’ ” the lawsuit said, “this is it….Underlying DACA is a dangerously broad conception of Executive power.”

DACA has protected about 800,000 younger immigrants who were brought to this country as children by their parents, many of them entering illegally and others staying without legal permission.  On an individual basis, they have had the threat of deportation lifted from them, allowing them to stay and to work or study, to obtain driver’s licenses, and to qualify for some other federal benefits.

The states’ lawsuit stressed that it was not necessarily asking that Judge Hanen issue a nationwide order against continued presence or work opportunity in this country for DACA recipients who now have permits, although it argued that he would have that authority because the program is illegal.

They would accept, the states said, a nationwide order barring any new permits to DACA immigrants to stay and to work but allowing those who now have such permits to benefit from them for the maximum period the program allowed: two years unless renewed.   Such an order would “effectively phase out the DACA program in two years,” it said.

The states’ new lawsuit makes an argument not previously leveled at DACA: that, even though the program was set up in 2012 with no opportunity for any of the undocumented young people to pursue citizenship, thousands have now become U.S. citizens and others, in larger numbers, have now been put on a “path to citizenship.”

As of last August, the states contended, 1,056 DACA participants have become citizens among a total of 2,181 who have applied for it, and 39,514 recipients have gained “lawful permanent resident” status that itself can be a prelude to seeking citizenship.

Thus, with the limited right to remain in the U.S., DACA recipients have moved ahead of others who would seek citizenship but who had not entered the country illegally, the lawsuit argued.

When the Obama Administration first created DACA in June 2012, the permits allowing recipients to remain, to work and to study lasted for only two years, but could be renewed for additional periods.   In November 2014, President Obama and his aides expanded DACA by increasing eligibility and allowing permits for three-year periods.  At that same time, the Administration also created a new program for undocumented parents who lived in the U.S. and had children who had become citizens or gained permanent legal status.

That program, called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), would have applied to nearly five times as many undocumented immigrants as DACA – more than 4 million.

DAPA and the expanded provisions of DACA never went into effect, because Texas and 25 other states successfully sued in Judge Hanen’s court, resulting in a February 2015 order blocking all of what the Obama Administration had added in November 2014.  That order was not aimed at the original DACA and its two-year permit regime.

After President Trump took office in 2017, the challenge in Judge Hanen’s court had not yet reached a final legal conclusion because there had never been a full-scale trial on the legality of the November 2014 actions by President Obama.  Texas decided that it would drop what remained of that lawsuit if the Trump Administration would end DACA in its original form.  That is what happened last September, but supporters of DACA promptly filed lawsuits across the country to try to save the program.

The specific legal grounds for the Texas coalition’s challenge to the remaining DACA program are that it violates the Constitution’s direction for the president to execute the nation’s laws, that it was adopted without allowing the public an advance chance to comment on it, and that it exceeds presidential power under federal immigration laws and is thus illegal.

The lawsuit was filed in the Brownsville federal court, which has only two federal judges.  It was originally assigned to District Judge Rolando Olvera, but almost immediately he transferred it to Judge Hanen.  Although no reason was given, that was done presumably because Judge Hanen was familiar with the issues from the earlier DACA/DAPA case.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.