Texas and six other states that sued this week to force an end to the Deferred Action for Childhood Arrivals (DACA) program likely will win, according to legal experts who have closely followed the case.
Texas Attorney General Ken Paxton announced Tuesday that his state was suing because “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.”
On Wednesday, the seven states asked for an order shutting down the program while the case proceeds.
Jan Ting, a Temple Law School professor, noted that Texas filed its suit in the federal court in Brownsville. That is significant because it is the same court where a judge blocked former President Barack Obama from implementing a larger quasi-amnesty program called Deferred Action for the Parents of Americans (DAPA). That program would have protected millions of illegal immigrants with U.S.-born children from deportation and granted them permission to work here legally.
“They’ve carefully chosen the district court that they’re going to file their complaint in,” he said.
Ting said the case ultimately will be decided by the same judge — U.S. District Judge Andrew Hanen — who determined DAPA was illegal and by the same appellate court that affirmed that decision.
Ting said it is hard to see how the Obama administration exceeded its authority on DAPA but not DACA.
“Everyone realizes that ‘If we can stop DAPA, we can stop DACA using the exact same arguments before the exact same judges,'” he said.
DACA beneficiary Greisa Martinez Rosas, deputy executive director of the advocacy group United We Dream, blasted the lawsuit.
“It is clear that Republicans will try everything possible to achieve their goal of mass deportation,” she said in a statement. “Now they are trying to stop all immigrant youth who are able to renew their DACA protections.”
Hans von Spakovsky, a legal fellow at the conservative Heritage Foundation, said the states have a friendly venue and a strong case on the merits. But he cautioned that an order striking down DACA would run counter to three separate court rulings in recent months that President Donald Trump could not end the program because he relied on an improper conclusion that it was illegal.
“Their one big problem is going to be persuading the district judge to issue an injunction that conflicts with orders other district courts have issued in these other cases,” von Spakovsky said.
But he argued that the states have a plausible argument that recent rulings dealt with actions by the Trump administration, whereas their suit challenges actions of the Obama administration.
Ting said another possible argument on behalf of DACA is that — unlike DAPA — it has been implemented and could negatively impact people in a way the DAPA decision did not because the program never took effect.
“We backed off. I believe that was an error.”
Dale Wilcox, executive director of the Immigration Reform Law Institute (IRLI), said that is a reason the states should have amended their original DAPA challenge to include DACA as well.
“In my view, it was a mistake for the states to dismiss their suit,” he said.
Texas and nine other states threatened last year to sue over DACA, which helped prompt Trump to announce in September he would wind down the program but give Congress six months to codify it in law.
Wilcox said his organization, the legal arm of the Federation for American Immigration Reform (FAIR), represented one of the states that was prepared to sue last year.
“We backed off,” he said. “I believe that was an error.”
Wilcox agreed, though, that DAPA and DACA are legally indistinguishable. He noted that Hanen, as part of his ruling on DAPA, cited statistics on DACA to conclude that both programs went far beyond the “prosecutorial discretion” that the Obama administration asserted.
Wilcox said the record was clear that government officials were not exercising discretion on a case-by-case basis.
“It’s basically rubber-stamped,” he said.
If a judge does ultimately issue an order ending DACA, von Spakovsky said, it would be a “sure ticket to the U.S. Supreme Court.”
And since the high court split 4-4 on DAPA, that means the deciding vote likely belongs to the man Trump appointed to the court — Justice Neil Gorsuch.