Texas and a half dozen fellow red states are trying once again to kill the Obama-era program that protects children who entered the U.S. with their parents without papers from being deported.
As the Trump administration wrestles with Congress and the courts over the future of DACA, Texas and its allies filed a complaint Tuesday that makes good on a threat they issued last year to challenge the program in federal court.
The states aren’t directly addressing the rulings by three judges who have all blocked President Donald Trump from rescinding Deferred Action for Childhood Arrivals. Instead, they contend the program wasn’t constitutional when it was first rolled out in 2012 by President Barack Obama.
“This lawsuit is emphatically about the rule of law," according to the complaint. “The executive branch does not exercise a lawmaking role. Its duty is to take care that the law is faithfully executed — substantive immigration law and procedural administrative law alike.”
The case may put the federal government in an awkward spot because U.S. Attorney General Jeff Sessions, whose job is to defend the government when it’s sued, opposes DACA just as much as Texas Attorney General Ken Paxton, who filed the suit.
“With a federal attorney general who erroneously and precipitously advised Trump that DACA is unlawful, today’s lawsuit is plainly collusive between two attorneys general each egregiously ignorant of the law,” the Mexican American Legal Defense and Educational Fund, an advocacy group that supports DACA, said in a statement.
Texas is joined by Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia, all of whom gave Trump an ultimatum in June 2017 that they would sue if his administration didn’t end DACA. In September, he issued an executive order to halt the program by March, but he was trumped by a trio of federal court orders leaving it in effect.
In announcing the case, Paxton said DACA is to blame for work permits being approved for “nearly one million unlawfully present aliens without congressional approval." Texas and its allies said in the complaint they aren’t seeking to revoke existing DACA permits, but want to phase out the program in two years.
The case has landed with the same federal judge who derailed a related program two years ago — in another case brought by Texas. U.S. District Judge Andrew Hanen blocked Obama’s plan to defer deportation for 4 million undocumented immigrants in a program called DAPA, or Deferred Action for Parents of Americans. His nationwide order ultimately was upheld by an evenly split Supreme Court.
Through the random assignment process used in federal courts, the new complaint initially went to an Obama-appointed judge, Rolando Olvera, in the Brownsville courthouse near the Mexico border. But as sometimes happens with legal fights that have long histories before another judge, Olvera handed it off to Hanen, who was put on the bench by George W. Bush.
In his statement, Paxton called out the “three activist federal judges” — one appointed by Bush in Washington and the others by Bill Clinton in San Francisco and Brooklyn, New York — who have all blocked Trump from rescinding DACA.
“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," Paxton said in a statement.
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