For longtime veterans of the immigration debate, Wednesday may have felt like waking up back in 2014.
When Texas Attorney General Ken Paxton filed a lawsuit on behalf of seven states challenging the Deferred Action for Childhood Arrivals policy in a Brownsville, Texas, federal court on Tuesday, in many ways it represented the issue coming full circle from a process Paxton himself began in the same courtroom four years ago.
“I had serious déjà vu last night,” said Josh Blackman, an associate professor at South Texas College of Law Houston who has supported Paxton’s 2014 suit.
The filing of the new case in front of the same judge who placed a major and lasting roadblock in front of an attempt to expand DACA was a return to the legal strategy that has both proved successful in the effort to prevent that expansion and has been replicated to prevent DACA from being taken away.
It also increases the already strong likelihood that the issue will ultimately be decided by the Supreme Court.
A bit of history: In 2012, President Barack Obama’s Department of Homeland Security instituted DACA, granting protections from deportation and work authorization to young undocumented immigrants who had come to the US as children. In 2014, a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents, known as DAPA, was signed, which would have granted similar protections to the parents of US citizens and expanded DACA to include potentially 5 million more people, according to estimates.
Enter Paxton and the Brownsville District Court.
The Texas attorney general quickly sued to stop the DAPA program from going into effect, and District Judge Andrew Hanen, a George W. Bush appointee, issued a nationwide ruling preventing it before it could be implemented. The ruling was upheld by the 5th US Circuit Court of Appeals and in 2016 made its way to the Supreme Court, where justices deadlocked 4-4 without a replacement yet for the late Justice Antonin Scalia, leaving Hanen’s ruling in place.
The case was always seen as having potential implications for DACA down the road if the challenge to DAPA were ultimately successful.
During the 2016 presidential campaign, then-candidate Donald Trump repeatedly pledged to immediately tear up both DACA and DAPA, but upon taking office, he left DACA in place.
Paxton then once again set in motion a series of events – issuing Trump an ultimatum to either rescind DACA and wind it down, or he would file to add the program to the litigation before Hanen, who was widely expected to reject the program on the same reasoning he rejected DAPA.
Trump did just that, with his administration announcing on Paxton’s deadline last September that DACA permits would begin expiring in six months, ostensibly to give Congress time to act.
But Paxton’s move preventing DAPA from going into effect had laid a road map that blue states seized on under Trump, suing in other perceived friendly court circuits to prevent the President from ending the program. Those lawsuits succeeded in three separate courtrooms, with federal judges in California, New York and DC issuing nationwide rulings that the program must be continued, in the vein of Hanen. Two of those cases are now being heard on appeal.
Though Paxton had allowed the DAPA lawsuit to be closed after Trump acted in September, he announced Tuesday that he would act now that the courts had prevented the rescission from taking place, suing once again in Brownsville. Though the case was initially assigned to the other judge sitting in that court, Judge Rolando Olvera, an Obama appointee, quickly signed an order transferring the case to Hanen. Olvera’s office said it had no comment on his reasoning for doing so and it was not explained in the court document.
Veterans of the long saga said they weren’t surprised by the move, with Hanen widely expected to follow the same reasoning and potentially fast track for action on DACA, Paxton may have his original goal in sight.
“Anyone who was paying attention knew what was going to come next: Texas was going to sue, and they chose to do so yesterday,” Blackman said.
“I basically have expected this all along, because my assumption right from the start was that when they filed the initial DAPA litigation that they made a strategic decision not to include DACA in their complaint because DACA was too popular a program,” said Stephen Legomsky, a law professor at Washington University who worked for the Obama administration when DACA was instituted and again during the litigation over DAPA. “I suspected they wanted to get Hanen to declare DAPA was unconstitutional and then use that as precedent.”
But the situation is different in one major respect, Blackman pointed out, which is that Trump is now in office. That puts the Justice Department – which is trying to end DACA – in an awkward position of being the subject of Texas’ lawsuit. It is likely that advocacy groups will end up defending the program in court. In the meantime, the echoes of Paxton’s 2014 move will continue to be felt.
“Texas is suing Trump to make him rescind a policy he actually wants to rescind, but there are judges saying he can’t … this is why I get these phone calls,” Blackman said.