The Trump administration is stuck between a rock and a hard place as a deadline approaches for Texas and nine other states to file suit against the Deferred Action for Childhood Arrivals (DACA) program.
Neither the White House nor the Justice Department have said whether they’ll defend the Obama-era program that’s set to be challenged in court unless the administration rescinds it by Sept. 5.
That puts the administration in difficult territory, particularly given President Trump’s vow to protect recipients of the program, known as Dreamers.
Under DACA, nearly 800,000 undocumented immigrants brought to the United States as children were given a work permit and protected from deportation.
An extension of DACA and a similar program, Deferred Action for Parents of Americans (DAPA), were blocked by United States District Judge Andrew Hanen in 2015, in a case that ultimately ended in a 4-4 tie in the Supreme Court that effectively ended both programs.
The DACA extension would have made the program available to a larger group of people, and DAPA would have provided similar benefits to an estimated 3.6 million undocumented immigrants with American-born children.
The suit centered on the ability of states to provide driver's licenses to program beneficiaries, arguing it would be too burdensome for states.
A separate case against the original DACA was thrown out in 2015, when a 5th Circuit appeals court dismissed similar arguments by the state of Mississippi and a union of federal immigration agents as not "sufficiently concrete."
The new lawsuit, led by Texas Attorney General Ken Paxton (R), is expected to seek out Hanen's court, which is widely seen as favorable to the challenge.
Trump campaigned against DACA, but he has gone on record saying he would treat Dreamers with “heart.”
Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Hillicon Valley — Apple issues security update against spyware vulnerability Stanford professors ask DOJ to stop looking for Chinese spies at universities in US Overnight Energy & Environment — Democrats detail clean electricity program MORE and White House adviser Stephen Miller are seen as internal opponents of extending benefits to any class of undocumented immigrants.
While several officials, starting with Trump and White House chief of staff John Kelly, have voiced sympathy for Dreamers, the administration's view of the program's legal standing is suspect.
In a press conference on a separate immigration bill last week, Miller wouldn’t say whether the White House would defend DACA.
“Well, we are not going to make an announcement on that today because there is ongoing litigation, and DOJ and DHS are reviewing that,” Miller said in response to a question from The Hill.
While Trump has voiced support for Dreamers, it's unclear to what extent he supports the program.
The president has described DACA and DAPA as “President Obama’s two illegal executive amnesties.”
Still, Trump renewed DACA in June in the same memo in which he formally terminated DAPA and a DACA extension. Both DAPA and the extension had previously been blocked by courts, so their official termination had no real-world effects on individual immigrants.
But in a one-line statement within that memo, Trump allowed DACA to continue as an official policy, maintaining benefits for the nearly 800,000 beneficiaries of the program and allowing new qualifying applicants to join.
“It's a decision that I make and it's a decision that's very, very hard to make. I really understand the situation now,” Trump said to reporters aboard Air Force One last month.
“I understand the situation very well. What I'd like to do is a comprehensive immigration plan. But our country and political forces are not ready yet.”
Kelly repeatedly asked Congress, while he was secretary of Homeland Security, for a legislative vehicle to permanently regularize DACA recipients’ status.
The White House batted down one such proposal, the DREAM Act, presented by Sens. Lindsey GrahamLindsey Olin GrahamGraham says he hopes that Trump runs again Trump pushes back on book claims, says he spent 'virtually no time' discussing election with Lee, Graham The Hill's 12:30 Report - Presented by Facebook - Biden meets with lawmakers amid domestic agenda panic MORE (R-S.C.) and Dick DurbinDick DurbinSchumer sets Monday showdown on debt ceiling-government funding bill Democrats surprised, caught off guard by 'framework' deal Senate panel advances antitrust bill that eyes Google, Facebook MORE (D-Ill.) last month. At that presentation, Durbin said the two senators were in communication with White House officials on the matter, but declined to name them.
Kelly has publicly voiced doubts about whether the program could sustain a legal challenge.
Meanwhile, opponents of the program are pressuring Trump not only to avoid a defense, but also to cancel it outright.
“If the administration chooses not to defend DACA in court, then the program may simply die a quiet legal death,” Steven Camarota, director of research at the Center for Immigration Studies (CIS), a think tank that advocates for reduced immigration, wrote for the National Review.
“But there is no need to wait; the president should take this opportunity and honor his campaign pledge to end the program,” he added.
The legal challenge faces a number of obstacles, which could serve as a reason for Trump to punt on any action.
“There's no guarantee that the state of Texas will be allowed by Judge Hanen to convert a challenge of DAPA to a challenge of DACA,” said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense Fund (MALDEF).
“If I were the Trump administration, I would not respond by Sept. 5.”
The fact that it has been in effect for five years will make it harder for Paxton to prove that DACA could cause irreparable harm to the plaintiffs, a necessary burden for a preliminary injunction, Saenz said.
If Hanen refuses to grant an injunction, the case would have to be settled on its merits, a process that could be time-consuming and complex.
Still, many on both sides of the issue believe the court challenge — whether through its merits or because of the venue — presents a real threat.
That's in part because many observers expect the case to follow the same path as the 2015 case that ended DAPA and the DACA expansion. Many of the program's supporters believe the judicial deck is unfairly stacked against DACA, with unsympathetic courts and plaintiffs, and a reluctant defense — if any defense is mounted — with Sessions at the helm.
The program's opponents see the program as an exemplary case of executive overreach.
“By unilaterally issuing work permits and deportation relief to a large class of illegal immigrants, President Obama effectively rewrote immigration law,” Camarota wrote.
But the impending court challenge has fewer supporters than the 2015 case, suggesting some attorneys general see a closer parallel with the case that originally upheld DACA. Of the 26 states that signed on against DAPA, only 10 are supporting Paxton's suit.
And administration officials’ reluctance to speak out against the program has emboldened its supporters, who believe they can make their case with so-far-silent allies within the Trump administration.
The American Civil Liberties Union (ACLU) on Monday filed open records requests in the 10 states that are threatening court action in an attempt to identify whether administration officials have collaborated with Paxton or other attorneys general to lay the groundwork for the case.
“If there is any, or has been any, coordination between state and federal officials and employees, it unveils a level of hypocrisy," said Lorella Praeli, a former Dreamer who is director of immigration policy and campaigns at the ACLU.
“Are employees working against [Trump's] wishes and a decision he's already made and a promise that he's made? Are they looking to undermine his authority? We don't know,” she added.