(CN) — Texas and eight other Republican-controlled states urged a federal judge Tuesday to end Deferred Action for Childhood Arrivals, sticking to their claims the Obama administration overstepped its authority in creating the program.
Started in 2012 through a memo from then-Department of Homeland Security Secretary Janet Napolitano, DACA allows certain immigrants brought to the country illegally as children to qualify for protection from deportation and allows them to get federal work permits and driver's licenses that can be renewed every two years.
The more than 600,000 people in the program come from 150 different countries, but 80% are from Mexico. The states with the most DACA youths are California, New York, Florida, Illinois and Texas, home to almost 160,000.
Texas sued the government over DACA in May 2018. The Trump administration has sided with the Lone Star State, agreeing that the program is illegal.
Represented by the Mexican American League Defense and Educational Fund, or MALDEF, 22 DACA recipients intervened to defend the program, as did the state of New Jersey.
U.S. District Judge Andrew Hanen, a George W. Bush appointee, kicked off Tuesday's hearing on dueling summary judgment motions with a cautionary note on language used in the litigation.
"As everyone here I think knows, to qualify for DACA you have to be in the country illegally,” Hanen said. “I don't want anybody to walk away from this hearing thinking lawyers from Texas, or lawyers for the government, or lawyers for the DACA recipients, or the lawyers for New Jersey, are speaking in pejoratives if they use the term illegal alien or illegal immigrant.”
Texas' case is partly based on the age-old anti-immigration argument that immigrants fill jobs that could go to Americans.
Under the Affordable Care Act, businesses are not required to provide DACA recipients with health insurance as they must for other employees, so Texas argues businesses have an incentive to hire DACA recipients over similarly qualified U.S. residents.
Texas also claims it spends more than $250 million per year on social services for the nearly 160,000 DACA recipients living in the state.
MALDEF countered in court briefs that discovery has disproven the Republican states' claims DACA displaces U.S. citizen workers.
"To the contrary, DACA recipients strengthen the U.S. economy and society by running businesses that could employ U.S. citizens and lawful workers, or by filling important jobs such as EMTs, teachers, and medical doctors," MALDEF lead counsel Nina Perales wrote in a Nov. 6 motion for summary judgment, citing an expert report that found DACA enrollees increase Texas’ gross domestic product by $11.5 billion a year.
The Obama administration defended its launch of DACA without first putting it through a public notice-and-comment period, as required of substantive rule changes under the Administrative Procedure Act, by claiming the program is merely one of prosecutorial discretion in which the government is deciding who it won’t deport, given it does not have the resources to remove the estimated 11 million paperless immigrants living in the U.S.
But Texas Assistant Attorney General Todd Disher argued Tuesday that the Supreme Court had eviscerated the argument that DACA was just about forbearing deportations in a June 18 order in which the 5-4 majority found the Trump administration had arbitrarily decided to end DACA.
"The Supreme Court has confirmed that DACA is not a mere grant of removal forbearance. DACA went further than that...It granted affirmative lawful presence and the associated benefits to a class of 1.5 million people," Disher said, citing the number of immigrants who potentially could qualify for DACA.
Texas also claims that contrary to the Obama administration's assertion that DACA would not provide any pathway to citizenship, more than 14,000 DACA recipients have used the program to adjust their status, "giving them a clear pathway to citizenship."
Opening her arguments Tuesday, MALDEF's Perales compared Texas' case to a doughnut.
"It has a lot of thick legal arguments around the outside but the center is empty,” she said before Hanen stopped her.
The judge indicated he agrees with Texas that DACA was put in place in violation of the Administrative Procedure Act based on the Supreme Court's June opinion in Regents of the University of California v. Department of Homeland Security.
But Perales argued the high court made clear in Regents that DACA is an exercise of prosecutorial discretion to defer removal of a particular individual, and that the benefits conferred on DACA recipients, namely work authorization, flow from other regulations that have existed many years before DACA.
Hanen said the Fifth Circuit rejected that argument in related litigation. "Am I not bound by the Fifth Circuit?" he asked.
The judge is well acquainted with DACA. He issued an injunction in February 2015 blocking an expanded version of DACA and Deferred Action for Parents of Americans, or DAPA, two directives Obama unveiled in November 2014, after a coalition of 26 states led by Texas sued.
The Fifth Circuit upheld Hanen’s injunction. A 4-4 split at the Supreme Court in June 2016 left the order in place.
Texas’ attorney Disher urged Hanen on Tuesday to "set aside" DACA as unlawful, but suggested the judge could stay enforcement of his order for two years to allow appellate review and an orderly wind down of the program for those who have existing DACA grants.
Following the Supreme Court's ruling in Regents that blocked the Trump administration from doing away with DACA, acting Department of Homeland Security Secretary Chad Wolf issued a memo barring U.S. Citizenship and Immigration Services from accepting new DACA applications and limiting the agency to renewing them for one-year terms.
But U.S. District Judge Nicholas Garaufis early this month ordered the Trump administration to reinstate the original terms of the DACA program and start accepting new applications.
Arguing on behalf of DACA recipients, New Jersey State Solicitor Jeremy Feigenbaum told Hanen if he finds DACA unlawful, he should remand it to DHS to see if the department can fix its problems without vacating it.
"If they don't like actions DHS took on remand, the states can sue again," Feigenbaum said.
If Hanen does remand DACA, it will likely be after President-elect Joe Biden, Obama's vice president for eight years, takes office Jan. 20.
In the lead-up to the November presidential election, Biden said he would fully reinstate DACA and try to push for more solid footing for DACA recipients.
"Dreamers and their parents should have a roadmap to citizenship through legislative immigration reform," Biden states in a policy paper on immigration.
Hanen indicated Tuesday he likes the idea of letting DHS work out DACA's kinks. He said after remand to Biden's DHS, the agency could end any question about DACA's legality by putting it up for a public comment-and-notice period before enforcing it.
After three hours of oral arguments Tuesday, he did not issue a ruling from the bench and did not say when he would issue a written order.
Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, Mississippi are also plaintiffs in the lawsuit.