A lawsuit by states seeking to end protected status for children whose parents brought them to the U.S. illegally could spare President Donald Trump from personally halting the Obama administration program.
“DACA is an unlawful program that must be phased out,” @AGRutledge says.
Or, immigration experts say, such litigation could force Democrats in Congress to bargain on stricter enforcement of immigration law.
Last month, 10 state attorneys general, led by Texas Attorney General Ken Paxton, wrote U.S. Attorney General Jeff Sessions calling for the Trump administration to end a program called Deferred Action for Childhood Arrivals, or DACA.
The program shields from deportation those who were minors when their parents brought them to the country illegally, a population their advocates call “dreamers.”
According to U.S. Citizenship and Immigration Services, 1.4 million DACA requests were accepted.
The state attorneys general have filed a lawsuit, but are willing to drop it if the Trump administration acts.
“There is no way around it: DACA is an unlawful program that must be phased out,” Arkansas Attorney General Leslie Rutledge, who signed the letter, told The Daily Signal in a prepared statement.
“I am not asking the government to remove any person currently covered by DACA or for the administration to rescind DACA permits that have already been issued—this is about upholding the rule of law,” Rutledge said. “Even former President Obama acknowledged many times that he did not have authority to unilaterally grant this type of legal status to over 1 million aliens.”
Justice Department spokeswoman Lauren Ehrsam confirmed to The Daily Signal that the department received the letter but declined further comment.
Besides Paxton, those signing the letter to Sessions include the attorneys general of Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, and West Virginia. Idaho Gov. C.L. “Butch” Otter also signed.
In 2012, while President Barack Obama was running for re-election, his Department of Homeland Security adopted Deferred Action for Childhood Arrivals.
In 2014, Obama expanded protection from deportation to the parents of illegal immigrants with Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
After states sued, courts rejected DAPA, asserting the executive branch doesn’t have the solitary power to grant legal status.
In June, citing the rulings, Trump’s Homeland Security secretary, John Kelly, revoked the 2014 memo authorizing DAPA. But the agency said at the time that DACA would remain in effect.
The Supreme Court deadlocked on DAPA in 2016, leaving in effect a U.S. 5th Circuit Court of Appeals decision upholding an injunction that blocked the policy.
“If DAPA is illegal, then DACA is illegal,” Mark Krikorian, executive director of the Center for Immigration Studies, told The Daily Signal. “But dreamers are the most sympathetic group of illegals. This would involve taking something away. So, you would have a string of sob stories in the media, which would be Pulitzer bait.”
However, if the Trump administration simply allows a case against DACA to move forward, the courts likely would strike down the program, alleviating it from political blame, Krikorian said.
He said it also might force Senate Minority Leader Charles Schumer, D-N.Y., to reach a deal for tougher enforcement of immigration laws in exchange for the Trump administration’s agreeing to provide protection from deportation for the “dreamers.”
“The administration might hope the courts will decide for them and they can say, ‘Our hands are tied,’” Krikorian said.
“If Texas and the other states sue, and [DACA is] struck down and is about to turn into a pumpkin, [Trump] might be able to pressure Schumer to pass E-Verify and end chain migration.”
Under the E-Verify system, now voluntary, employers electronically check the legal status of immigrant workers. Many conservatives hope to make it mandatory.
Chain migration is a term used to describe a policy of keeping immigrant families together by giving reference to the relatives of those already here in allowing individuals to enter the country. Trump and others back a merit-based system based on what skills and education an immigrant can bring.
Paxton organized the letter to Sessions signed by himself and his counterparts, who were plaintiffs in the lawsuit that challenged DAPA, the program protecting parents of illegal immigrants.
The letter states that DACA is illegal for the same reason of executive overreach, and that if the Trump administration makes corrections by Sept. 5, the attorneys general will dismiss their lawsuit against that program in the U.S. District Court for the Southern District of Texas.
The letter says, in part:
The original 2012 DACA program covers over 1 million otherwise unlawfully present aliens … And just like DAPA, DACA unilaterally confers eligibility for work authorization … and lawful presence without any statutory authorization from Congress. … We respectfully request that the secretary of Homeland Security phase out the DACA program.
A lawsuit would force the Trump administration to act, said Hans von Spakovsky, a senior legal fellow at The Heritage Foundation.
“If a lawsuit were filed, then DOJ would be put in the awkward position of defending the Obama program or eliminating it in response to the lawsuit,” von Spakovsky told The Daily Signal.
The letter is a needed reminder to the Justice Department that the DACA program is also unlawful, he said:
The administration has a constitutional obligation to terminate the DACA program, a program providing government benefits for illegal aliens that was not only not authorized under federal immigration law, but actually violated the law. This administration should not allow the unlawful actions of the prior administration to continue.
Illegal immigrants protected under DACA are allowed to get a Social Security card and, in many states, a driver’s license. Although “dreamers” can’t access direct federal financial assistance for college, they are eligible to fill out the Free Application for Federal Student Aid, which opens up opportunities under certain state and private grants and loans.
The 10 state attorneys general are “egging the federal government on to be more cruel and heartless,” said Naomi Tsu, deputy legal director for the Southern Poverty Law Center, a progressive legal group known for labeling its political opponents as “hate groups.”
“The letter requests that the Department of Justice revoke protections for immigrant youth and begin targeting for deportation these young people who have grown up as Americans,” Tsu said in a prepared statement. “These attacks will prevent children, many of whom know no other home, from working legally and reaching their full potential. If the Trump administration follows through on this request, they will be responsible for further pushing immigrant communities underground, making communities less safe, less prosperous, and more divided.”
Although the letter from the state attorneys general mentions the Department of Homeland Security, DHS spokesman David Lapan referred The Daily Signal to the Justice Department.
The program is not likely to survive a court challenge, said Ira Mehlman, spokesman for the Federation for American Immigration Reform, which seeks stricter enforcement of immigration laws.
“If it went to the Supreme Court, it would be ruled unconstitutional,” Mehlman said of DACA in a phone interview with The Daily Signal. “Our expectation was that DACA was just going to lapse. It wasn’t our expectations these people would be rounded up and deported. But they would revert back to their previous status.”
For Idaho Attorney General Lawrence G. Wasden, the letter is about separation of powers under the U.S. Constitution.
“This is part of my office’s ongoing efforts to encourage the federal government to respect the separation of powers,” Wasden said in a prepared statement, adding:
These [Obama administration] directives were the equivalent of legislating by executive order. My signature on this letter is not about targeting immigrant families. Rather, it is consistent with my objection to legislative executive orders as well as encouragement to Congress to fulfill its constitutional responsibility and address these pressing issues.