Texas puts Trump in bind over Dream­ers

‘Masterful stroke’ aims to end ‘il­le­gal’ amnesty

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

Texas has put Pres­i­dent Trump over a bar­rel with its threat to sue to stop the 2012 de­por­ta­tion amnesty for Dream­ers, said le­gal an­a­lysts, call­ing the state’s case as close to a slam-dunk as pos­si­ble.

Known in Wash­ing­ton as DACA, the amnesty was started by Pres­i­dent Obama — and was roundly crit­i­cized in last year’s cam­paign by Mr. Trump. Now in of­fice, though, Mr. Trump has re­versed him­self and kept DACA in­tact, ap­prov­ing tens of thou­sands of new and re­newal ap­pli­ca­tions.

But the pro­gram has been on bor­rowed time for more than a year, ever since a se­ries of court bat­tles ended with the June 2016 Supreme Court rul­ing that in­val­i­dated Mr. Obama’s sec­ond amnesty, the 2014 pro­gram known as DAPA.

Texas At­tor­ney Gen­eral Ken Pax­ton has now of­fi­cially pressed the is­sue, say­ing in a let­ter last week that if DAPA is il­le­gal, then so is DACA. He gave Mr. Trump un­til early Septem­ber to phase out the pro­gram or else he will force the courts to rule.

“This is a masterful stroke by Texas,” said Josh Black­man, an as­so­ciate pro­fes­sor at South Texas Col­lege of Law. He said Mr. Trump has been try­ing “to have it both ways” but will now have to choose.

“If Texas de­cides to lit­i­gate this, you’ll now have the Trump ad­min­is­tra­tion de­fend­ing in court an il­le­gal pro­gram that they said is il­le­gal,” he said.

DACA was con­tro­ver­sial from the start. Mr. Obama for years pub­licly doubted he had the power to cir­cum­vent Congress and is­sue such a broad amnesty. He re­versed him­self just be­fore the 2012 elec­tion when he was des­per­ate to shore up sup­port among His­panic vot­ers.

Now it’s Mr. Trump who is search­ing for a way to treat Dream­ers with “heart” and who is strug­gling with the le­gal is­sues.

Trump ad­min­is­tra­tion of­fi­cials have been silent on the threat by Mr. Pax­ton and eight other state at­tor­neys gen­eral and one state gov­er­nor — all Repub­li­cans.

Dream­ers, who just weeks ago cheered the ad­min­is­tra­tion’s an­nounce­ment that it was main­tain­ing DACA, were fu­ri­ous at the lat­est turn and called Texas’ move racist.

“This is our home, and we are here to stay,” said Greisa Martinez, an ad­vo­cacy di­rec­tor at United We Dream Ac­tion, a lobby for Dream­ers.

Ac­tivists vowed to fight in the po­lit­i­cal arena, plead­ing with con­gres­sional Repub­li­cans to rally to Mr. Trump as he tries to keep the DACA pro­gram run­ning.

But le­gal an­a­lysts said there may not be much any­one can do to res­cue a pro­gram that suf­fers from the same le­gal flaws as DAPA.

“The cases are nearly iden­ti­cal. It’s a clear win­ner for the states, and I’m very happy Texas has sent this let­ter,” said Kris Kobach, sec­re­tary of state in Kansas and one of the key lawyers who has helped plot le­gal strat­egy for ad­vo­cates of a crack­down.

DACA ap­plied to young adult il­le­gal im­mi­grants who came to the U.S. as chil­dren, who man­aged to keep a rel­a­tively clean crim­i­nal record and who worked to­ward a high school de­gree. They called them­selves Dream­ers, and they have long been the most sym­pa­thetic cases in the im­mi­gra­tion de­bate.

DACA brings with it a two-year stay of de­por­ta­tion and a work per­mit, en­ti­tling the im­mi­grants to a So­cial Se­cu­rity num­ber and the chance to earn a driver’s li­cense and re­ceive other tax­payer ben­e­fits.

In 2014, Mr. Obama went even fur­ther, propos­ing to ex­pand DACA to Dream­ers of all ages and to in­clude per­haps 4 mil­lion par­ents of U.S. ci­ti­zens and le­gal per­ma­nent res­i­dents. That ex­pan­sion to par­ents was the DAPA pro­gram.

Texas led 26 states in su­ing to stop DAPA. A fed­eral dis­trict judge in Texas, and then the 5th U.S. Cir­cuit Court of Ap­peals, blocked the pro­gram na­tion­wide, rul­ing it was il­le­gal. The Supreme Court last year dead­locked 4-4, leav­ing the ap­peals court rul­ing in place.

If any­thing, DACA’s case could be an even tougher sell. While the Obama ad­min­is­tra­tion’s at­tor­neys ar­gued that DAPA re­cip­i­ents had an even­tual path to le­gal sta­tus un­der ex­ist­ing law, based on the le­gal sta­tus of the chil­dren, that does not nec­es­sar­ily ex­ist for DACA re­cip­i­ents.

Im­mi­grant rights ad­vo­cates said the best le­gal hope they have is that judges who stopped DAPA be­fore it took ef­fect would be more re­luc­tant to halt DACA, which has been in ef­fect for five years and is pro­tect­ing 780,000 peo­ple.

“That likely has le­gal im­pli­ca­tions,” said Kamal Es­sa­heb, a lawyer and di­rec­tor of pol­icy and ad­vo­cacy at the Na­tional Im­mi­gra­tion Law Cen­ter. “These are peo­ple who en­tered into a pro­gram with a cer­tain un­der­stand­ing about how they were go­ing to be treated, about how their in­for­ma­tion was go­ing to be treated. You can’t un­wind that the same way you can a pro­gram that hasn’t been kicked off yet.”

Mr. Es­sa­heb, who was ap­proved for DACA in 2012, said Dream­ers are count­ing on Mr. Trump to de­fend them and see the fight as more of a po­lit­i­cal show­down than a le­gal mat­ter.

“Part of the bat­tle’s go­ing to be in the court, but for us, the re­al­ity is we have 800,000 lives that are be­ing im­pacted by the un­cer­tainty that’s been in­serted here,” he said. “Now is the op­por­tu­nity to see whether [the pres­i­dent] puts his money where his mouth is.”

Ac­tivists point to re­search show­ing that nearly half of DACA re­cip­i­ents since 2012 have man­aged to raise their earn­ings, a ma­jor­ity have been able to ob­tain driver’s li­censes and a small frac­tion have even been able to buy homes.

Stephen Le­gom­sky, a for­mer Home­land Se­cu­rity De­part­ment lawyer and now pro­fes­sor at Wash­ing­ton Univer­sity in St. Louis, said it’s dif­fi­cult to dif­fer­en­ti­ate the work­ings of the two pro­grams from a le­gal stand­point, though the smaller num­ber of DACA re­cip­i­ents may help the pro­gram’s cause in the courts.

“I don’t know if that will be enough of a dif­fer­ence,” he said.

If Mr. Trump fights the case, he will have to con­vince the same court with Judge An­drew S. Ha­nen, who first in­val­i­dated DAPA.

Af­ter Judge Ha­nen, the case would go back through the 5th Cir­cuit and, all sides say, would al­most cer­tainly end up back at the Supreme Court.

There, it would likely come down to Jus­tice An­thony M. Kennedy.

Mr. Black­man said Texas’ le­gal ar­gu­ment ap­peared care­fully crafted to ap­peal to Jus­tice Kennedy, ask­ing for a phase-out of the cur­rent pro­gram rather than a full stop that would toss cur­rent DACA ben­e­fi­cia­ries out of sta­tus.

Mr. Le­gom­sky said the Trump ad­min­is­tra­tion could try to head off the en­tire le­gal fight by chang­ing the guid­ance the Obama ad­min­is­tra­tion is­sued — though he said it’s not an av­enue he’s ad­vo­cat­ing.

Texas’ stand­ing to chal­lenge the DAPA pro­gram stemmed from the state’s sub­sidy for driver’s li­censes, which the state is re­quired to dole out to those deemed “law­fully present” in the U.S. If the Trump ad­min­is­tra­tion deletes the law­ful pres­ence des­ig­na­tion from DACA, then it would re­move the el­i­gi­bil­ity for driver’s li­censes.

That would be a se­ri­ous blow to the Dream­ers, but it could also sap Texas of its chief ar­gu­ment for stand­ing to sue.


Julio Arel­lano (left) led his chil­dren in the Pledge of Al­le­giance dur­ing a rally this spring in Dal­las for an im­mi­gra­tion sys­tem with heart. Texas At­tor­ney Gen­eral Ken Pax­ton has now of­fi­cially pressed the is­sue.

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