Texas And Six Other States Sue To End DACA Program

A new lawsuit seeks to have the 2012 DACA program declared unconstitutional.

Making good on a threat they had issued to the Trump Administration nearly a year ago, Texas and six other states have filed a lawsuit seeking to strike down the Deferred Action For Childhood Arrivals (DACA) program put in place by President Obama in 2012:

Opening another front in the battle over immigration policy, Texas and six other states sued the federal government on Tuesday in an attempt to end the Deferred Action for Childhood Arrivals program.

The lawsuit — joined by Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia — asserts that the Obama administration overstepped its authority when it created the DACA program, which allows individuals who were brought to the United States illegally as children to remain in the country, without congressional approval.

“The executive unilaterally conferred lawful presence and work authorization on otherwise unlawfully present aliens, and then the executive used that lawful-presence ‘dispensation’ to unilaterally confer United States citizenship,” the lawsuit says.

It calls on the United States District Court for the Southern District of Texas to “immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” or at a minimum to block the government “from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.”

The lawsuit represents a strange conflict between two parties that do not actually disagree. President Trump, too, wants to get rid of DACA: He ordered an end to the program in September and called on Congress to pass a replacement law, though it has not done so.

But the repeal has been delayed by legal challenges. Just last week, a federal judge in Washington ruled that the government must keep the program in place and start accepting applications again, unless it can provide a stronger legal justification for abandoning it. And federal judges have ordered the administration to preserve DACA while two other lawsuits, in San Francisco and Brooklyn, proceed.

“Three activist federal judges have blocked the federal government from canceling DACA,” Attorney General Ken Paxton of Texas, whose office filed the lawsuit, said at a news conference on Tuesday. “That means that unelected federal judges are forcing the Trump administration to leave an unlawful program in place indefinitely as legal challenges drag on.”

And so, while the heads of the Department of Homeland Security and its constituent agencies are the ones being sued, the real targets are the judges who have ruled against the Trump administration. Mr. Paxton hopes that the judges who rule on it — perhaps ultimately the justices of the United States Supreme Court — will let Mr. Trump proceed with the repeal he already wants.

A Homeland Security spokeswoman said the agency would not comment on pending litigation.

The lawsuit drew condemnation from the Texas Democratic Party — whose chairman, Gilberto Hinojosa, said Mr. Paxton’s “cruel anti-immigration agenda will rip over 124,000 Texans away from their families and jeopardize our economy” — and other supporters of the DACA program.

Mr. Paxton “said he is challenging DACA not to be cruel or inhumane, which the lawsuit is both, but to determine the legality of DACA,” Jessica Azua, the immigration campaign coordinator for the Texas Organizing Project and a DACA recipient, said in a statement. “But DACA is already being contested in the courts, so its legality will be determined in due time.”

This lawsuit comes at the same time that three other Federal District Court Judges have issued injunctions blocking the Trump Administration’s effort to end the program and compelling the Federal Government to continue providing protection to existing DACA beneficiaries and to accept new applications from people eligible for such protection and a fourth has determined that a lawsuit he is presiding over can go forward.. In January, a District Court Judge in San Francisco ruled that the Administration’s efforts to repeal the program violated the law and issued an injunction barring the program from going into effect. That ruling was followed roughly a month later by a ruling from a second Federal Judge in Maryland who issued a similar ruling on much the same grounds as his colleague in San Francisco. In March, a Federal Judge in New York City denied a motion seeking to dismiss a similar lawsuit against the Trump Administration order in a ruling that cited many of the same grounds as the previous two orders and which also cited in support of its conclusions rhetoric from the President both in his speeches and in his Tweets. Finally, just last week a Federal District Court Judge in Washington, D.C. issued an injunction similar to those issued by his fellow Judges in California and New York, but also ordered that the Administration must accept new applications from people eligible under the DACA rules that President Obama established when the program was first established six years ago. While these injunctions have been pending the Supreme Court declined to disturb the injunction in the San Francisco case, meaning that the government will be forced to go through the Ninth Circuit to appeal that case.

This isn’t the first time that Texas and other states have acted to challenge an Obama-era immigration relief program. While President Obama was still in office, Texas was joined by a larger number of states in challenging a separate program called Deferred Action For Parents Of Americans (DAPA). This program provided relief from deportation for parents of children who were born in the United States after their parents arrived here illegally and are therefore American citizens pursuant to the 14th Amendment. The states were largely successful in that litigation in that they were able to obtain a stay from the U.S. District Court that was affirmed by the Fifth Circuit Court of Appeals. Ultimately, that stay was effectively upheld by an equally divided Supreme Court, which sent the case back to District Court for further proceedings. Before that could happen, though, President Trump was elected to office and, eventually, rescinded the DAPA program, effectively rendering the lawsuit moot and the DAPA program dead. The case filed today was filed in the same Court that issued the initial stay against the DAPA and has been assigned to the same Judge who issued the original injunction barring enforcement of the DAPA program. In that respect, it’s with noting that this Judge has expressed doubts about the constitutionality of the DACA program in each of his DAPA-related rulings, but, of course, those statements had no legal effect since the issue of DACA’s validity was not before him at that time.

The state’s Complaint, which runs some 73 pages excluding exhibits and is set forth in 356 numbered paragraphs, raises many of the same claims as the challenge to DAPA did and also has some similarities to the lawsuits seeking to bar the Trump Administration from ending the DACA program. As with the other DACA lawsuits, the Texas lawsuit alleges that the original DACA program was not adopted pursuant to the procedural requirements of the Administrative Procedure Act, including the notice and comment requirements that I have talked about in previous posts about the DACA lawsuits. Additionally, the lawsuit also raises similar arguments to the lawsuit against the DAPA program, alleging that DACA violates existing immigration laws, that it exceeded the discretionary enforcement authority that existing law grants to the Executive Branch, that it violates principles of separation of powers between the Legislative and Executive Branches by improperly taking action that only Congress can take in connection with immigration law and that the states have been injured by these actions due to the costs they have been forced to incur as a result of the DACA program and other factors. As with the DAPA lawsuit, this lawsuit seeks the issuance of an injunction barring enforcement of the DACA program.

As things stand, it will likely be some time before there is any ruling in this case. The first conference of attorneys, at which only preliminary matters are typically discussed, is currently scheduled for the end of July and that means that it would likely be months before briefing on an injunction would be completed and ready for a decision. While that period of time is elapsing, it’s entirely probable that we’ll see some action in one of the other DACA programs from the four separate Circuit Courts of Appeal that have jurisdiction over the courts in question any one of these courts could issue a ruling either upholding or striking down the respective injunctions. In the meantime, Dara Lind at Vox has a fairly good explanation of what could happen in the event of potentially conflicting rulings from five separate District Court Judges:

The chance is very real that at some point, the preliminary injunctions forcing the Department of Homeland Security to process DACA applications could be met with a preliminary injunction from Judge Hanen forcing them to stop.

This would be a mind-bendingly weird situation.

There would likely be a lot of pressure on the Fifth Circuit Court of Appeals to issue a stay blocking Hanen’s order as quickly as possible so that there were only injunctions in one direction in effect. After all, in theory, multiple rulings in DACA’s favor ought to outweigh a single ruling against it.

But legally speaking, the Fifth Circuit has no obligation to defer to lower-court judges in other circuits, or even to other circuit courts. The Supreme Court might ultimately have to figure out how to resolve the paradox.

Even if the problem got quickly resolved by courtroom standards — say, a few days — that’s still a few days during which US Citizenship and Immigration Services adjudicators would have to arrive at the office simultaneously compelled by the courts to work through the stack of DACA renewal applications on their desks and prevented from doing just that.

It’s genuinely not clear what they would end up doing. “I’m not aware of a prior situation in which there have been conflicting injunctions against the government,” says law professor Stephen Legomsky of Washington University. But he speculates that if the administration thought it had more than one legally defensible option, it might decide to stop processing DACA applications that came from immigrants living in Hanen’s district — or even to stop processing all applications from immigrants not living in the districts where the original pro-DACA injunctions were issued.

The paradox wouldn’t make or break any individual immigrant’s DACA application, but it could further gum up an approval process that’s already been worrisomely slow in some cases.

In recent years, some legal scholars have gotten worried about how often lower-court judges use nationwide injunctions to stop federal programs. In fact, it’s one of the questions the Supreme Court has raised in the case Trump v. Hawaii, over the latest version of Trump’s travel ban.

But the Supreme Court isn’t likely to resolve that question in its travel ban ruling broadly enough to prevent a potential DACA train wreck in late summer or fall. And if such a train wreck happens, the Supreme Court might have to get involved in the DACA cases on an emergency basis. And if the Supreme Court is more worried about the courts stopping the Trump administration from doing what it wants with DACA than it is about one injunction outweighing two or three, it might put a stop to DACA’s revival more quickly than it would have had Texas never opened up a second front.

There’s a lot that can and may happen before we reach that point, but what all of this means is that it’s beginning to look like we’re going to need to get the issue of (1) whether DACA is constitutional to begin with and (2) if it is, whether the Trump Administration’s attempt to end it is constitutional. Obviously, if the answer to the first question is no, then the second question becomes moot. However, if the Court ultimately finds that the Obama Administration had the legal authority to institute the original DACA program six years ago then it will be forced to rule on the question of whether or not the Trump Administration acted properly in trying to end the program. That will make these legal arguments all the more interesting.

Here’s the Complaint:

Texas Et Al. United States Et Al by Doug Mataconis on Scribd

FILED UNDER: Borders and Immigration, Congress, Donald Trump, Law and the Courts, Politicians, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. SKI says:

    We don’t like what all those other unelected Judges said the law was so we are going to *our* unelected Judge (again) said to get a different opinion.

    We really have an issue when a single one-judge district in Texas is the favored forum for all these national injunctions…


  2. TM01 says:

    @SKI: because no one from the left has cherry picked districts regarding Trump’s travel ban.


  3. TM01 says:

    “the original DACA program was not adopted pursuant to the procedural requirements of the Administrative Procedure Act”

    And right there that should allow Trump to end DACA just Like That.

    If the argument against Trump ending DACA is that he did so without the proper notice and comment requirements, how in the hell do you justify keeping it around if Obama enacted it without those requirements in the first place?

    If DACA was enacted improperly to begin with, The President should be able to end it right now.


  4. Tyrell says:

    @SKI: Or in the California federal court. I do not understand how it can be legal that a federal court way out in California can tell other states what to do.
    I also don’t see how it can be legal for a judge to tell the federal government that it has to continue a program. That is like making the law.


  5. HarvardLaw92 says:


    DACA was created solely as a limitation on prosecutorial discretion with respect to which cases DHS would pursue. It doesn’t enact new rules or change the substance of existing rules. DHS is simply exercising its authority to determine how it executes the rules it’s charged with enforcing. Cases are still being prosecuted.

    It’s not within the scope of the APA.

    But hey, best of luck. You’ll need it. You should call them up down in the land of tumbleweeds & obesity and offer them your legal expertise


  6. SKI says:

    @Tyrell: It isn’t telling the states. It is telling the Federal Government.

    And that is how our system works. It would be enormously unproductive and a massive waste of resources if the US Government had to be sued in all 50 states (plus territories) every time they do something wrong.


  7. TM01 says:

    @HarvardLaw92: ok fine.

    Then what can’t Trump just end it? Why does the APA only apply if Trump wants to end the program? The APA is being used as a reason to not end it.

    So your reasoning (sic) makes no sense.

    You are just wrong as well, since DACA also issues work permits to people here illegally. DACA is more than just prosecutorial discretion. If that were the case, you’d really have no legal standing to sue to stop it.


  8. HarvardLaw92 says:


    Then what can’t Trump just end it?

    Technically speaking, he can. He just has to go about doing so in a certain manner. Unfortunately (for you), he’s debarred from doing so by multiple federal injunctions which are predicated on due process problems inherent in the way that he tried to do so as well as on APA. Your basic problem here, which your side created for itself, is that Sessions is a shitty lawyer.

    Why does the APA only apply if Trump wants to end the program? The APA is being used as a reason to not end it.

    Noted above. but if you insist on going down that road: neither the implementation process nor the supplied rationale for instituting DACA was arbitrary & capricious. A considerable amount of study & planning determined that the agency’s limited resources were better expended prosecuting higher risk cases for deportation, ergo it made sense from an internal policy standpoint to defer prosecution of lower risk issues while retaining the ability to set aside that deferment in individual cases where doing so was determined to be warranted. The courts, including your vaunted 5th Circuit, found that to be a reasonable position (which is why they drew quite definitive lines between DAPA and DACA in their rulings and why DACA survived them while DAPA didn’t).

    In contrast, the administration’s stated rationale for ending DACA, immediately no less, amounts to Sessions ordering the Acting Secretary to do so “because I think it was implemented illegally”, despite abundant evidence to the contrary being available in any of the multiple rulings he could have read concerning this issue. At basis, Sessions rationale amounts to “because I say so”, and sorry, but that’s the textbook definition of arbitrary & capricious.

    You are just wrong as well, since DACA also issues work permits to people here illegally

    Actually, it doesn’t. Decades of precedent and federal law do. The temporary extension of the ability to establish abode and work to persons for whom prosecution / removal has been deferred is long standing practice going back at least to the 1950’s.

    DACA doesn’t, in and of itself, grant any of those. It simply defers prosecution. Everything else you are upset about is a derivative consequence of that deferment which DACA, in and of itself, has nothing to do with. Congress is free to close those derivative doors at its leisure. It has never done so.

    DACA is more than just prosecutorial discretion. If that were the case, you’d really have no legal standing to sue to stop it.

    Really? OK, speaking as one lawyer to another, please point out to me the sections of this memo, which established DACA, that implicate anything beyond prosecutorial discretion (and don’t even bother trying to jump on that next to last paragraph. These people would have been entitled to file requesting a determination for work authorization upon being approved for deferred action anyway, under both INA and existing precedent. DACA created nothing new there).

    The short version is that you elected a demagogue as president who then appointed a moron as AG, and we’re just better at this going to court game than you are.