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Texas Leads States in Legal Challenge to DACA Program

Move opens a new front in fight over status of undocumented childhood immigrants

Immigration rights protesters march to the Capitol on Dec. 6, calling for a legislative fix to the DACA program. (Bill Clark/CQ Roll Call file photo)
Immigration rights protesters march to the Capitol on Dec. 6, calling for a legislative fix to the DACA program. (Bill Clark/CQ Roll Call file photo)

Texas and six other states filed a lawsuit against the Trump administration Tuesday seeking to stop the Deferred Action for Childhood Arrivals program, arguing that the 2012 executive order that created it is unlawful.

The move opens a new front in the legal fight over the Obama-era program for undocumented immigrants who arrived in the country as children. It also adds more uncertainty to the future of these so-called Dreamers. After the Senate’s fruitless attempt to legislate a path to citizenship for them, there is little chance for more congressional action anytime soon.

Last year, a 10-state coalition that included Texas told the Trump administration to end the DACA program or face such a legal challenge, Texas Attorney General Ken Paxton said Tuesday. The administration tried to end the program in March, but federal courts in California, New York and the District of Columbia blocked the Homeland Security Department from doing so.

The Supreme Court declined the Justice Department’s request to intervene and undo those nationwide injunctions quickly. Now those “legal challenges drag on,” said Paxton, a Republican.

“Texas has argued for years that the federal executive branch lacks the power to unilaterally grant unlawfully present aliens lawful presence and work authorization,” Paxton said. “Left intact, DACA sets a dangerous precedent by giving the executive branch sweeping authority to ignore the laws enacted by Congress and change our nation’s immigration laws to suit a president’s own policy preferences.”

Watch: Trump — Democrats ‘Nowhere to Be Found’ On DACA

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Texas — joined by Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia — says in the lawsuit against DHS and other federal agencies that the court “has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful.”

“However, Plaintiffs are amenable to a remedy that enjoins defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years,” the lawsuit states.

All of the states except Louisiana are led by Republican governors.

The states filed the lawsuit in the same Southern District of Texas courthouse in Brownsville where Texas and other states filed a challenge in 2015 to another immigration program created by President Barack Obama, one aimed at parents of undocumented immigrants.

The U.S. Court of Appeals for the 5th Circuit found that program unlawful. That appeals court had the last word, since the Supreme Court, left shorthanded because of Justice Antonin Scalia’s death, deadlocked 4-4 on the case.

When it came to the Trump administration’s decision to end DACA, Attorney General Jeff Sessions determined that the program exceeded the statutory and constitutional authority of DHS. He based that in part on the 2015 litigation.

The states in Tuesday’s lawsuit have 131,280 DACA recipients as of January, according to the nonpartisan Migration Policy Institute, but Texas, by far, has the bulk of those, with 111,670. West Virginia has 120.

Dean DeChiaro contributed to this report.

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