In the months following President Donald Trump’s September 2017 decision to end the Deferred Action for Childhood Arrivals program, federal judges across the country have kept the program alive and well. A new legal challenge, however, could soon put DACA in jeopardy with a less favorable ruling.
Seven states filed a lawsuit over DACA against the U.S. Department of Justice in the U.S. District Court for the Southern District of Texas May 1. In the lawsuit, the plaintiffs challenge former President Barack Obama’s 2012 executive action establishing DACA, arguing that immigration policy should be “debated in and decided by Congress.”
The participating states are hoping to bring about an end to DACA, which provides legal protections to undocumented immigrants who were brought to the U.S. as children. The lawsuit asks the court to prohibit the Justice Department from issuing or renewing future DACA permits, “effectively phasing out the program within two years.”
“Our lawsuit is about the rule of law, not the wisdom of any particular immigration policy,” Texas Attorney General Ken Paxton, who filed the lawsuit, said in a statement. “Texas has argued for years that the federal executive branch lacks the power to unilaterally grant unlawfully present aliens lawful presence and work authorization. Left intact, DACA sets a dangerous precedent by giving the executive branch sweeping authority to ignore the laws enacted by Congress and change our nation’s immigration laws to suit a president’s own policy preferences.”
Joining Texas in the lawsuit are Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia. Paxton and other state attorneys general previously sent a letter to Attorney General Jeff Sessions in June 2017 promising to file a lawsuit against the program if the Trump administration did not bring it to an end, as they soon would.
Following the May 1 filing, Paxton then filed a nationwide preliminary injunction, which would stop the federal government from issuing or renewing DACA permits while the lawsuit is pending. The injunction has not yet been granted.
On Tuesday, 22 DACA recipients began a fight of their own to be heard in the new lawsuit. The Mexican American Legal Defense and Educational Fund filed a motion for intervention on the DACA recipients’ behalf, arguing that they would be “inadequately represented” by the Trump administration in the lawsuit.
“Texas and the Trump administration share the same erroneous and uninformed view of the law with respect to DACA,” Thomas A. Saenz, MALDEF president and general counsel, said in a statement. “Such a collusive lawsuit cannot go forward without intervenors who will actually and vigorously defend the critically important initiative.”
The Texas lawsuit comes in the wake of a series of rulings in favor of DACA. The federal government is still currently processing DACA renewal applications after federal judges in San Francisco and Brooklyn, New York, issued rulings in January and February that temporarily blocked the Trump administration from ending the program. In April, a federal judge in the District of Columbia ruled that the government must also resume accepting new applications within three months if it cannot sufficiently explain its decision to end the program. A Maryland judge sided with the Trump administration in March, though its decision still left the other injunctions in effect.
DACA’s fate has been thrust into the courts’ hands as a result of Congress’ inaction on the issue. After a DACA decision forced a government shutdown in January, Congress has still yet to vote on the program’s future. A group of House Republicans are currently gathering signatures in an attempt to force a vote.
The Trump administration could also issue a memo that would better clarify their reasoning for ending DACA, which would lead to new legal rulings that could clarify the program’s potential termination.
The new lawsuit could further complicate DACA’s fate, as it appears likely the decision will be in Texas and the other states’ favor. The case will be overseen by Judge Andrew Hanen, who has a history of delivering anti-immigrant rulings. In 2015, Hanen struck down the Deferred Action for Parents of Americans and Lawful Permanent Residents program, a similar program to DACA which would have protected 4 million undocumented immigrants.
The judge argued in 2015 that Obama implemented DAPA illegally, adding in his opinion that DAPA and DACA were “instituted in the same fashion.”
Once Hanen rules on the case, the lawsuit could then be headed for the 5th Circuit, which Stephen Legomsky, a former chief counsel for U.S. Citizenship and Immigration Services, described to the Texas Tribune as “the nation’s most politically conservative court of appeals.” The court previously ruled against DAPA and has since brought on even more conservative appointees, which likely predicts a ruling in Texas’ favor.
In the event of dueling legal rulings, UCLA School of Law professor Samuel Bray told BuzzFeed News that the judges in California, New York and Washington, D.C., could adjust their own rulings accordingly, or continue to direct the federal government to continue processing applications.
“They could decide to take a view that harmonizes all of the orders,” Bray said, adding, “If they did that, they would be giving up on their position. There’s no ‘split the difference’ here.”
The conflicting rulings, however, will likely have to be resolved by the U.S. Supreme Court — which experts cited by the Tribune noted is likely Texas and the other states’ ultimate goal.
“I think that Texas and the other states want to eliminate the DACA initiative, but I think they’re also trying to derail the other cases that are going on right now that have so far preserved or extended DACA,” Nina Perales, a lawyer for MALDEF, told the Tribune. “Texas is trying to set up a situation where there is a contrary decision, and then I think ultimately these questions are going to have to be decided by the U.S. Supreme Court.”
The Supreme Court declined to take up DACA’s fate in February, after the Trump administration requested the court review the lower courts’ rulings. In 2016, the court was split 4-4 in its ruling on DAPA, which left the lower courts’ block on the program in place. Since, Trump appointee Judge Neil Gorsuch has been added to the bench, whose conservative record suggests he would be expected to rule against DACA.
It’s hard to say what would happen with DACA applications while the case moves toward a Supreme Court ruling. One possible solution is that the Department of Homeland Security could process DACA applications only in certain parts of the country, Legomsky suggested to USA Today.
“I know of no prior situation in which there have been conflicting injunctions against the government, with one court ordering the government to do precisely what previous courts have prohibited it from doing,” Legomsky said.