A federal judge in Texas has yet to issue a ruling on the future of the Deferred Action for Childhood Arrivals program, or DACA.
The Houston Chronicle reports that U.S. District Judge Andrew S. Hanen’s decision will not likely come until after President-elect Joe Biden is sworn into the White House in late January. While Biden has promised to uphold DACA and allow the program’s beneficiaries—known as ‘Dreamers”—to remain in the United States, Hanen could issue a ruling challenging its core legality.
An Obama-era program, DACA provides undocumented immigrants who arrived to the United States as children with access to temporary, renewable residency and work permits. Participation is contingent on background checks which evaluate applicants’ educational attainment, military service history, and criminal records.
Earlier this week, though, Hanen heard arguments from Texas and eight other states, which are collectively attempting to shut down DACA. They claim that, in issuing the executive order which created DACA, former President Barack Obama overstepped his executive power and violated the Administrative Procedure Act.
“Our lawsuit is about the rule of law, not about the wisdom of any particular immigration policy,” Texas Attorney General Ken Paxton, a Republican, said in a statement. “In a lawless exercise of executive power, the Obama administration attempted to bypass our elected representatives and put DACA in place by executive action. The debate over DACA as policy is a question for lawmakers, and any solution must come from Congress, as the Constitution requires.”
However, attorneys for the Mexican American Legal Defense and Education Fund—or MALDEF—say that Obama acted within his authority, as he only provided undocumented immigrants with a temporary reprieve rather than a path towards permanently legal residency.
“We are optimistic because we’ve raised so many strong arguments as to why, first of all, the case should be dismissed entirely, and second of all, why the merits issues should be resolved in favor of DACA recipients,” said Nina Perales, MALDEF’s vice president of litigation.
Houston Public Media notes that several lawsuits against DACA have been defeated in recent years, along with the Trump administration’s own attempts to shutter the program.
Nevertheless, HPM suggests this lawsuit differs from its predecessors in that it challenges DACA’s original terms, with Paxton and his allies asserting that the program only took effect after President Obama circumvented the U.S. Constitution and flouted Congress’s authority in immigration.
While MALDEF says it does not believe the federal government has the resources to deport the hundreds of thousands of Dreamers living in the United States today, the organization’s president—Thomas Saenz—said DACA cannot be protected by Biden, or anyone else, without comprehensive legislative reform.
“DACA,” Saenz said, “has to be replaced by a legislative approach.”
Despite Saenz’s insistence, he did tell HPM he does not believe that DACA, in its current form, is either illegal or unconstitutional. That’s because the U.S. Supreme Court determined this past summer that the Trump administration’s rationale for attempting to end DACA in September 2017 could not be upheld.
“If I were any judge,” Saenz said, “I would look at the Supreme Court and say to myself, ‘If this were an unlawful program in the view of the Supreme Court majority, why would they not have simply said so?’”