A federal judge in Texas heard arguments Wednesday on whether he should end the Deferred Action for Childhood Arrivals program, a case that could tee up a fast track for the issue to hit the Supreme Court this fall.
District Judge Andrew Hanen, a George W. Bush appointee, heard arguments from 10 states that say DACA, a program that protects from deportation young undocumented immigrants who came to the US as children, is unconstitutional. Their arguments rely heavily on a previous court ruling from Hanen that blocked an expansion of the program and the creation of a similar program for immigrant parents in 2014 from going into effect.
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Hanen did not rule Wednesday and said he would hold off ruling on the constitutionality of DACA for now and consider only the request to immediately stop it.
DACA was created by executive action during the Obama administration, but opponents of President Donald Trump's decision to end it have convinced multiple federal judges this year that doing so violates the Administrative Procedure Act, a federal law that dictates how the government can create or change regulations. Hanen asked for responses from both sides by Monday on whether DACA itself also runs afoul of the act.
The Trump administration decided to end DACA last September, in part due to a threat from Texas and other states to sue if it didn't. But in the months since, three federal judges around the country have ruled that decision was not adequately justified, and have ordered the program to remain.
Texas sued, in the end, to argue that the original program was unconstitutional so it could be wiped off the books.
The administration has decided to not defend DACA in Hanen's court, so pro-immigrant groups and New Jersey stepped in to defend the program instead.
The Trump administration has argued to Hanen that if he decides to issue an immediate stoppage of the program, he should limit any ruling to recipients in the states that have sued and should delay his order's effectiveness to give the administration time to appeal. A Justice Department attorney reiterated that position Wednesday in court.
Attorneys for the immigration advocacy group MALDEF argued that a key issue facing Hanen is whether Texas and other states can legally bring the case to begin with and are suffering irreparable harm from DACA, which has existed for five years.
"In addition to the legality of DACA, one of the more important topics of today's hearing was whether Texas was suffering any kind of injury whatsoever from having DACA recipients living and working in the state," said MALDEF attorney Nina Perales. "Texas was not able to point to evidence that DACA recipients are costing the state anything."
The Trump administration is already preparing to appeal a different order from a Washington, DC, district judge, which would require it to reopen the program to new applications and restore it in full. Previous courts had merely ordered the government to continue renewing permits. That judge postponed the implementation of his decision 20 days to allow for the appeal. Other cases are pending before appellate courts in California and New York.
Hanen is widely seen as unfriendly to DACA, given his previous ruling on its sister program, Deferred Action for Parents of Americans and Lawful Permanent Residents.
"Issues in front of the court are issues that have already been decided," the lead attorney for the states challenging DACA, Todd Disher, said in court Wednesday. "This is not a close case."
Obama's move was a "direct defiance" of the law, Disher added.
If Hanen were to rule DACA should be ended, that would conflict with the court rulings that the program should be reopened -- likely setting the stage for a fast track to the Supreme Court by this fall.
Former Solicitor General Don Verrilli, who defended DACA's expansion in the previous Hanen case under the Obama administration, told reporters on a call Monday that the administration is trying to use the courts to achieve a policy outcome that it is too scared to stand behind itself. The administration justified ending the program because a court would likely find it unconstitutional, rather than because the administration saw a harm in it continuing.
"I think what you see here is the government hiding behind a legal rationale because it's unwilling to embrace the reality that it is abandoning DACA for reasons of policy, not reasons of law," Verrilli said.
In a statement Monday, Attorney General Jeff Sessions decried the creation of DACA in the first place, citing the original Hanen ruling as evidence of its lack of validity.
"The last administration violated its duty to enforce our immigration laws by directing and implementing a categorical, multipronged non-enforcement immigration policy for a massive group of illegal aliens," Sessions said. "This wrongful action left DACA open to the same legal challenges that effectively invalidated another program they established."