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Yet another showdown over the breadth of presidential power in immigration may be headed for the US Supreme Court. This week Texas and a half-dozen other Republican-controlled states sued to end an Obama-era immigration executive order. The move is likely to ramp up anxiety for the almost 700,000 US residents brought here illegally as children who have been deemed low priorities for deportation under the Deferred Action for Childhood Arrivals program former President Barack Obama created by executive order in 2012. The program has been in effect for six years, but the lawsuit filed by Texas Attorney General Ken Paxton on Tuesday represents the first direct challenge to the program’s lawfulness. The lawsuit asks for an order blocking the Trump administration from issuing or renewing any DACA permits. The move is reminiscent of efforts to overturn Mr. Obama’s executive actions on immigration. This time around, however, only six states have opted to join Texas in the lawsuit, compared with 25 that joined similar efforts in 2015. That at least partly reflects a shift in public support for DACA.
You could be forgiven for feeling a strange sense of déjà vu this week.
The fact that Texas and a half-dozen other Republican-controlled states sued this week to end an Obama-era immigration executive order feels very 2014. But while some of the legal arguments may be familiar, the timing of this particular lawsuit is likely to sow confusion in the courts and chaos in federal agencies. The stakes are highest for the almost 700,000 US residents brought here illegally as children who have been deemed low priorities for deportation under the Deferred Action for Childhood Arrivals (DACA) program former President Barack Obama created by executive order in 2012.
The end result is likely to be yet another showdown in the US Supreme Court over the breadth of presidential power in immigration, something Republicans criticized when Mr. Obama was in the White House and something that Democrats have criticized since Donald Trump replaced him.
“This is all about the president’s authority in immigration,” says Muzaffar Chishti, director of the Migration Policy Institute’s office at the New York University School of Law.
“Obama decided to invoke it in favor of the DACA people, and Trump decided to invoke it in favor of the travel ban,” he adds, referring to President Trump’s executive order restricting entry to the US for citizens of eight countries.
“It will be very interesting to see how this plays out,” continues Mr. Chishti. “There are political minefields here, not just legal ones.”
The DACA program has been in effect for six years, but the lawsuit filed by Texas Attorney General Ken Paxton on Tuesday represents the first direct challenge to the program’s lawfulness. The lawsuit asks for an order blocking the Trump administration from issuing or renewing any DACA permits.
In fact, the program has lots of public support, with one 2018 poll finding that 83 percent of Americans favor continuing the program, including 67 percent of Republicans. Mr. Trump has described DACA recipients as “good people … that should be able to stay in this country.” Texas Gov. Greg Abbott and Lt. Gov. Dan Patrick have remained notably silent about the suit.
This may partly explain why only six other states have joined Texas in the current lawsuit, compared with the 25 who joined when the state spearheaded litigation against Obama’s executive actions on immigration in 2015, says Denise Gilman, director of the Immigration Clinic at the University of Texas School of Law in Austin.
“The general consensus is we need to figure out a way to create a stable status for those who are currently benefiting from DACA,” she says.
In terms of the legal arguments, that 2015 lawsuit is the blueprint for the current one. Texas and its six co-plaintiffs – Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia – claim that Obama violated his constitutional duty as president to “take Care that the Laws be faithfully executed,” as well as violating the Administrative Procedure Act (APA). The suit has been filed in the same court, the Brownsville-based Southern District of Texas, as the 2015 case. It has been assigned to Judge Andrew Hanen, who also heard the 2015 case and sided with Texas.
Confusion and conflict
Mr. Paxton has been threatening this lawsuit since Trump entered the Oval Office. In June 2017, he gave the Trump administration three months to end DACA or he would sue. Three months later, US Attorney General Jeff Sessions announced that new applications would no longer be accepted and that permits valid for more than six months would not be renewable. If they didn’t take these steps, he said at the time, “the likeliest outcome is that [DACA] would be enjoined.”
But two federal district courts, one in Northern California and one in New York, have ruled that the Trump administration must allow current DACA recipients to apply for renewals again. And last week a federal judge in Washington, D.C., went even further, saying the administration “offered meager legal reasoning” for believing the program would be declared unlawful and saying it may have to accept new DACA applications as well.
What that means, Professor Gilman says, is that “we might end up with a situation where we have different federal courts in different parts of country issuing different injunctions at cross purposes with each other.”
If two courts say DACA must continue but another says no new applications can be processed, she adds, “what do federal officials who receive those applications do?”
Before district court rulings find themselves in conflict with each other, Mr. Sessions and the US Justice Department face their own conflict – seeking to terminate the DACA program while now being called on to defend it.
The Trump administration could say it will not defend the program against Texas because it believes DACA is unlawful, experts say. It is a strategy that would echo the Obama administration’s refusal to represent the federal government in lawsuits against the Defense of Marriage Act, a federal law that banned same-sex marriage.
The Mexican American Legal Defense and Educational Fund (MALDEF) has intervened to defend DACA recipients, recently representing them in Arizona when the state successfully argued that they’re not eligible for in-state college tuition.
“You can be sure that the top law firms of the country will be defending the executive order,” says Chishti. “If MALDEF decides to intervene they’ll be well legally-resourced to bring the best arguments.”
Shopping for injunctions
The best legal arguments may not be enough to convince Judge Hanen that DACA is lawful, experts say. The 2015 lawsuit didn’t address the original DACA program. Instead, it focused on the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which sought to give unauthorized parents with US-born children low-priority deportation status and to expand DACA.
In upholding an injunction blocking DAPA’s implementation, and the DACA expansion, nationwide, Hanen wrote that “even ‘unreviewable’ administrative actions may be subject to judicial review under exceptional circumstances” and that the Obama administration “clearly legislated a substantive rule without complying with” the APA.
The US Court of Appeals for the Fifth Circuit later upheld the injunction, and when the Obama administration appealed that ruling to the Supreme Court – reduced at the time to eight justices – the court split 4-to-4, upholding the Fifth Circuit’s decision and setting no new precedent.
“What they’re trying to do is follow the same arguments and the exact same strategy” this time as in 2015, says Steven Schwinn, an associate professor at the John Marshall Law School in Chicago.
“That’s a strategic choice on the part of the plaintiffs,” he adds. “I think they’re likely to get quite a welcome reception from that judge.”
That strategic choice has been a common one in recent years. Obama’s presidency saw attorneys general in Republican states fight his executive actions tooth and nail in the courts, often successfully. Since Trump replaced him attorneys general in Democratic states have done exactly the same thing, most notably in securing several nationwide injunctions from district courts in liberal jurisdictions to block the travel ban.
“The lawsuits in the Obama administration ramped up the strategy substantially,” says Professor Schwinn. “Lower courts are now routinely issuing nationwide injunctions.”
“People on both sides of the political aisle are seeing this as a powerful tool to stop the president from implementing policy that they see as either illegal or unfavorable to their position,” he adds.
The combination of this trend and the broad powers given to the president on immigration matters has seen the Supreme Court weigh in on the appropriate breadth of those powers several times in recent years. Just last week the justices seemed reluctant to rule that Trump doesn’t have the authority to implement the travel ban.
With conflicting lower court opinions on DACA’s lawfulness now appearing likely, the high court will soon be asked to review that question. At that stage, the court’s tie vote on DAPA in 2016 will loom large, and all eyes will be on the one new arrival: Justice Neil Gorsuch. He has been a reliable conservative vote since joining the court last June, only to surprise court-watchers last month in voting with his four more liberal colleagues in a case that now makes it more difficult for the Trump administration to deport some unauthorized immigrants.
“What Justice Gorsuch does will be very critical,” if a DACA case reaches the high court, says Chishti, “and frankly we have no idea where he will go on this issue.”