Ten of the states that had succeeded in a sweeping challenge to President Obama’s 2014 order that would have delayed deportation of more than 4 million undocumented immigrants acted on Thursday to force an end to a similar 2012 Obama order to protect about 1 million younger immigrants. If that is not done by September for the youth program, those states warned the Trump Administration, they will sue to get it scuttled in the courts.
The letter to the Justice Department amounted to an effort to assure the end of the only part of the Obama deferred deportation policy that had actually gone into effect. This followed a decision by the Trump Administration earlier this month to nullify the part of the policy that had never gone into operation, affecting immigrant parents of children who are U.S. citizens or who have a legal right to stay permanently in the country.
The Obama Administration, believing that U.S. policy on deportation should not break up families of immigrants and should not penalize immigrant youths who had been brought to this country by their parents and had become part of their communities, had moved in two phases to create a regime in which those who had remained in the country without legal permission but had conducted normal lives here could stay and could get work permits.
The first part came in June 2012, the so-called “DACA” program, applied to youths, allowing them to seek – and later renew – permits to remain for two years. That part went into operation and has benefitted nearly 900,000 younger immigrants who had not obtained legal status. It did not guarantee them a chance to become citizens, only to stay and work.
The second part, the so-called “DAPA” program, would have applied to upwards of 4 million parents of children with citizenship or legal status. It was adopted in November 2014. It never went into effect, because 26 states, led by Texas, challenged it successfully in lower federal courts, blocking enforcement. The 2014 program also expanded the earlier “DACA” policy by allowing eligible youths to apply for three-year permits.
The 2014 changes appeared to be doomed last year, when the Supreme Court – splitting 4-to-4 – left intact the lower court orders against enforcement. Then, on June 15 of this year, the Trump Administration rescinded the 2014 program, but chose not to disturb the 2012 “DAPA” program that had been operating.
Now, ten of the 26 states that were involved in the earlier successful challenge, with Texas again taking the lead, have sought to complete the demise of President Obama’s deferred deportation policy
Their letter Thursday argued that the “DACA” program for youths had the same legal flaws as the one that lower courts relied upon in blocking the “DAPA” program for parents –that is, that President Obama did not have the legal authority to promise mass relaxation of deportations in violation of federal immigration laws that deny undocumented immigrants a right to remain in the country.
In the new demand, the ten states called for a “phasing out” of the “DACA” program, by rescinding the 2012 order setting it up, and refusing to issue any new or renewed permits to stay and work under that program. It said the demand would not require the government to nullify any such permits that are currently in force, nor would it require the government to deport any specific alien. Without the permits, though, all of the youths covered by the program would face the risk of being deported, case by case.
If the new Administration agrees to the letter’s demands by September 5, the states’ letter said, they would voluntarily dismiss the lawsuit that had prevented enforcement of the 2014 provisions. Although they had won a nationwide order against that program, on the premise that it probably would be struck down, the legality had actually never been fully tested in a trial in the south Texas federal court where it has been pending for nearly three years.
While the dispute over the 2014 program was working its way up to the Supreme Court, the trial to actually determine its legality has been repeatedly postponed. The judge in that case on Thursday issued a new order keeping the case on hold until July 7, when the lawyers involved are to notify the court on what they intend to do.
The ten states’ letter to the Justice Department on Thursday said that, if what remains of the “DACA” program for youthful immigrants is not ordered phased out by the September date, they would file a new version of the 26-state lawsuit to challenge whatever remains of that program, in the original and expanded forms. That letter has not yet been filed with the district court in Texas.
Although 26 states had joined in the earlier challenge, the new letter did not say why only ten of them were joined in the new maneuver against the “DACA” program. The new effort was described in a letter on the stationary of Texas Attorney General Ken Paxton, and was signed by him and by the attorneys general of nine other states, plus one governor of one of those states.
State legal officials in Texas had repeatedly filed lawsuits against the Obama Administration, on a wide array of policies.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. 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.
