Judge hears Texas’ challenge to DACA in Houston

The state of Texas will continue to incur irreparable financial harm if an Obama-era immigration program isn’t halted immediately, attorneys for the state argued in Houston on Wednesday.

But lawyers representing nearly two dozen recipients of the Deferred Action for Childhood Arrivals program countered by saying Texas sat back for six years and did nothing, and its attorneys have yet to prove the harm the state claims it has faced since the program was implemented in 2012.

Those were just two of the arguments presented to U.S. District Judge Andrew Hanen on Wednesday after Texas Attorney General Ken Paxton sued the Trump Administration in May to end the 2012 program, which protects immigrants brought into the U.S. as children from deportation and allows them to obtain a two-year work permit.

Hanen in 2015 halted a more far-reaching immigration program, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, after he agreed with Texas and 25 other states that the initiative was too broad for the president to create on his own and that federal procedures were violated when it was implemented.

Assistant Texas Attorney General Todd Disher said Hanen’s prior decision should be applied to this current case because both programs were implemented by similar methods.

“The legal issues in this case have already been decided by binding precedent,” he said. “The facts are not in dispute.”

Hanen’s 2015 ruling, which was upheld by the Fifth Circuit Court of Appeals and the U.S. Supreme Court, was also cited as a reason that the 2012 program was a unilateral overreach of executive authority: “The Fifth Circuit correctly held the [Immigration and Nationality Act] does not permit the reclassification of millions of illegal aliens.”

Texas and six other states sued the Trump administration to end the DACA program after three separate district courts ruled that the initiative must continue. The most recent decision came last week, when a Washington D.C. judge upheld his order that the administration must continue the program. The reinstatement is set to begin on Aug. 23, absent any further action from appellate courts.

The Mexican American Legal Defense and Educational Fund, or MALDEF, was granted permission to represent 22 DACA recipients in the case after it argued that Texas and the White House were essentially on the same side. It was joined by attorneys from New Jersey, whose attorney general, Gurbir S. Grewal, was present for Wednesday’s proceedings.

MALDEF and New Jersey said Texas could have filed suit in 2012 or amended its 2014 complaint aimed at DAPA to also include DACA, but instead waited six years to take action. They also argued that while DAPA would have benefitted more than 4 million people, DACA has a much smaller pool of potential applicants. Nina Perales, MALDEF’s vice-president of litigation, said there are only about 702,000 DACA beneficiaries in the country today.

The state of Texas defended its timing by arguing it was waiting for the DAPA outcome to come down and was subsequently encouraged by President Trump’s announcement in September 2017 that DACA was going to be phased out.

Perales also argued against Texas’ assertion that the coalition of states suing to end the program have spent hundreds of millions of dollars to provide DACA recipients with education, health care and law enforcement services. She said the plaintiffs also cite in their evidence the cost of unaccompanied minors who came to the country after 2014, while DACA applies only to people who were in the country from 2007 or before.

She made a similar counter argument to Texas’ claim that it has spent vast sums of money providing health care to only DACA recipients.

“What Texas does is it estimates the cost of serving undocumented individuals statewide and applies it to DACA,” she said. “Undocumented immigrants are eligible for a few state funded programs but they are eligible for those regardless of DACA or not.”

She added after the hearing that the evidence actually shows that Texas benefits from DACA recipients working and participating in society.

Throughout Wednesday’s proceedings, Hanen peppered both sides with questions, often interrupting the attorneys and pressing them for more evidence to justify their claims. He also asked the attorneys to submit by Monday a brief on whether DACA violated the federal Administrative Procedures Act if applicants are subject to individual discretion. Hanen ruled in 2015 that DAPA violated the APA, which governs how federal regulations are made.

Perales said after the hearing that she was pleased by the judge’s desire for more details.

“The judge was very patient, he allowed each side to get up and make its arguments,” she said. “I was encouraged by the judge’s curiosity and interest in additional questions.”

In a written statement, Paxton said the case is about the rule of law and whether the president can act without congressional approval.

“DACA is unconstitutional because it rewrote federal law over the objections of Congress,” Paxton said. “DACA represents a dangerous view of executive power, which would allow the president to unilaterally set aside any duly enacted law. It cannot be allowed to stand without doing serious harm to our Constitution.

It’s not clear when Hanen will issue a ruling, but the case will likely reach the appellate or Supreme Court level before it is finally resolved.