Politico
By Seung Min Kim
August 23, 2017
President Donald Trump has been unusually cautious about his plans for so-called Dreamers, but he’s running out of time to make up his mind.
Ten conservative states have threatened to sue the administration in order to kill off the Deferred Action for Childhood Arrivals program, a 2012 initiative that has granted work permits to nearly 800,000 young undocumented immigrants. They’re trying to replicate their legal tactic from more than two years ago, when a broader coalition of GOP-led states successfully stopped a more expansive program for millions of undocumented immigrants before it even began.
That means DACA, which President Barack Obama began five years ago this month, is confronting its gravest danger yet. And one of the biggest questions — will Trump defend the program in court — is still anybody’s guess.
Trump is facing pressure from his conservative allies to kill the initiative, but the hard-liner-in-chief has said that he wants to approach Dreamers “with heart.” Meanwhile, it’s also not clear how Trump would fare in court if he does defend the program, even as an early September deadline to act looms.
Legal experts believe if Texas and the nine other states do file a lawsuit to halt DACA, they’ll win — particularly if the same federal judge that blocked the broader immigration program under Obama, Judge Andrew Hanen, oversees the latest legal challenge.
Stephen Legomsky, who was chief counsel at U.S. Citizenship and Immigration Services when the Obama administration launched DACA, said Hanen’s “extreme, extreme hostility” to Obama’s 2014 executive actions on immigration “was a matter of public record.”
“If Judge Hanen allows them to tack on a DACA challenge, no doubt he will enjoin DACA,” said Legomsky, now a law professor at Washington University in St. Louis. “It is more difficult to disrupt an ongoing successful program … all that said, given the judges they’re likely to have, I think they have a very tough challenge.”
Other experts also said Hanen’s rulings, as well as decisions from the 5th U.S. Circuit Court of Appeals, in the previous immigration case provide the legal underpinnings for DACA to get blocked by the courts.
“This isn’t difficult on the merits. Hanen already said DACA is unlawful,” said Josh Blackman, a libertarian-leaning professor at South Texas College of Law Houston. “If they sue on the merits, they should win in district court.”
The sudden legal threat, which the states — Texas, Louisiana, Alabama, Nebraska, South Carolina, Tennessee, Arkansas, Idaho, West Virginia and Kansas — outlined in a June 29 letter, have left lawmakers and immigration advocates scrambling to shield the program for Dreamers.
The initial lawsuit that had challenged the 2014 executive actions is still pending before Hanen. Texas and the other states say if the Trump administration doesn’t begin phasing out DACA by Sept. 5 by not renewing permits nor granting new ones, they’ll sue to stop them by amending the existing lawsuit.
In an order issued last Thursday, Hanen put the case on hold until the states’ self-imposed deadline.
But unclear throughout all this is how the president, who has continued the program despite his campaign pledge to end it, will respond to a legal challenge to DACA.
Justice Department spokesman Devin O’Malley declined to comment on whether DOJ — under Attorney General Jeff Sessions, who fiercely opposed the program as a senator — would defend DACA in court should the states sue.
Gillian Christensen, the acting spokeswoman for U.S. Citizenship and Immigration Services, also declined to comment on potential pending litigation. But she emphasized that the administration “would quickly and professionally make changes to the program in the least impactful manner possible for recipients” should changes to DACA come from Capitol Hill or the courts.
“The Department of Homeland Security’s stance remains the same – the future of the DACA program continues to be under review with the administration,” Christensen said. “The president has remarked on the need to handle DACA with compassion and with heart.”
Both Legomsky and Blackman said DOJ could decline to defend itself if they are sued over DACA and leave it to outside intervenors instead to fight the GOP-controlled states. One option is for an attorney general from a pro-DACA state, such as California, to intervene in the case and defend the program in court.
The Mexican American Legal Defense and Education Fund is one group that has already intervened in the existing case. In an interview, Thomas Saenz, MALDEF’s president and general counsel, said he believed the states would lose in their bid to kill DACA in the courts.
One reason: Texas and the other states may not even be able to prove that they have standing to sue. In the initial lawsuit, the courts found that the states could go ahead with the lawsuit because of the expenses incurred with issuing new drivers’ licenses to millions of immigrants protected under Obama’s initiative.
But that is much more difficult to prove with DACA, which has been around for five years, Saenz said.
“They will have a hard time proving there is a net cost to DACA,” he said. “They benefit from work authorized DACA recipients paying taxes, contributing to the economy in a way they could not without work authorization. All of that would have to be vetted and decided before you get to the merits.”
Saenz added: “If they don’t have standing, you don’t ever get to the merits. Case is done.”
He also emphasized that while more than two dozen states challenged the broader Obama executive actions three years ago, just 10 states have vowed to do so on DACA — illustrating the political difficulty of going after Dreamers, usually the most sympathetic group of undocumented immigrants.
A judge could also question why Texas and the states waited so long to mount a legal case against DACA, Saenz added.
On Capitol Hill, some key Republicans aren’t eager for DACA beneficiaries to lose their protections through the courts.
Sen. Lindsey Graham (R-S.C.) has drafted two bills with Sen. Dick Durbin (D-Ill.) protecting DACA recipients and a broader population of young undocumented immigrants brought here illegally.
And pressed twice on whether he believes his home state should go ahead and sue the administration over DACA, Senate Majority Whip John Cornyn (R-Texas) signaled that he wasn’t on board with the strategy.
“I just think my objection to the way DACA was handled during the Obama administration was that it should not have been done unilaterally by the president,” Cornyn said in an interview earlier this month. “Congress needs to address this and I’m eager to do that. That’s how I think it should be resolved.”
Democrats and advocates, meanwhile, are drafting potential legislative remedies, urging the administration to protect the program and making the public relations case on behalf of the Dreamers.
All but six Senate Democrats from the 48-member caucus signed onto a letter to Trump earlier this month asking the president to use his “executive authority to the greatest extent possible” to shield DACA.
In July, Durbin, Senate Minority Leader Chuck Schumer (D-N.Y.) and Sen. Bob Menendez (D-N.J.) met privately with more than a dozen advocates in the Capitol to plot strategy in advance of the September deadline imposed by the conservative states, according to two people familiar with the meeting.
“I’ve talked to the White House about it, I’ve talked to my colleagues about it,” Durbin said recently. “Lindsey and I have repeated it over and over, we think this is a serious threat.”
The No. 2 Senate Democrat, a longtime advocate for Dreamers, added: “I will say the president has been more forthcoming on DACA and Dreamers than on any other immigration issue. But we still don’t have a plan that deals with it or anything that I think will be timely. And we’re running out of time.”
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