DACA back in court as Texas-led lawsuit seeks to shut the Obama-era program down

Wednesday's hearing on DACA has come to a close in Houston. The federal judge in the case did not issue a decision after Texas and seven other states asked for a nationwide injunction to stop the government from accepting new applications and issuing renewals.

U.S. District Judge Andrew Hanen asked the plaintiffs and the interveners being represented by MALDEF to file briefs by Monday for additional information on questions he raised during the hearing.

"DACA is unconstitutional because it rewrote federal law over the objections of Congress," Texas Attorney General Ken Paxton said in a prepared statement issued immediately after the hearing ended. "DACA represents a dangerous view of executive power, which would allow the president to unilaterally set aside any duly enacted law. It cannot be allowed to stand without doing serious harm to our Constitution. This lawsuit is vital to restoring the rule of law to our immigration system."

After the hearing, MALDEF attorneys and several of the 22 DACA recipients addressed members of the media outside the Houston courthouse.

“For those that have DACA, we will continue to fight in the courts," said Karla Perez of Houston said at the briefing. "We will continue to fight however we can.”

A hearing on the constitutionality of the Deferred Action for Childhood Arrivals is underway in the courtroom of U.S. District Judge Andrew Hanen in Houston.

A seven-state coalition led by Texas will argue today that the creation of DACA was an executive overreach and that states suing are facing irreparable damages.

Immigration advocates meanwhile plan to ask the court to dismiss the lawsuit on the grounds that the claim of irreparable damages is invalid given that the program has stood for more than six years now and that DACA recipients contribute much more than they do harm.

Though the suit was filed against the Department of Homeland Security, DACA is being represented by the Mexican American Legal Defense and Education Fund on behalf of 22 DACA recipients. The 22 were allowed to intervene by Hanen back in May shortly after Texas and other states filed the suit.

During a call with reporters last week, MALDEF president Thomas Saenz and head of litigation Nina Perales said they did not expect a same-day ruling from the judge, but they were ultimately prepared to receive an unfavorable ruling given Hanen's track record of being tough on immigration cases.

Hanen was the same judge who shut down an expansion of DACA in 2015 and stopped an Obama initiative that would've granted deferred action and work permits to undocumented parents of U.S. citizens and lawful permanent residents.

If  Hanen ends up ruling in favor of the states and orders the federal government to stop issuing DACA renewals and orders the program shut down, the injunction would conflict with that of three other federal judges who have all ordered that the program must stand.

Any conflict would likely force the Supreme Court to step in and issue a stay on Hanen's decision until the court itself can take up the case next spring.

The six-year-old DACA program protects immigrants brought to the U.S. as children from deportation and grants them two-year work permits.

The seven-state coalition led by Texas is expected Wednesday to request an injunction ordering the federal government to stop issuing new work permits to beneficiaries of the Deferred Action for Childhood Arrivals program. More than 110,000 Texans are in the program and over 680,000 nationwide.

Texas Attorney General Ken Paxton and other state attorneys argue that DACA is unconstitutional and puts an undue financial burden on the states. Other states involved in the suit are Alabama, Arkansas, Louisiana, West Virginia, South Carolina and Nebraska.

Noel Pullam held a sign during a rally for DACA recipients at City Hall Plaza in Dallas last fall.<div><br></div>(Rose Baca/Staff Photographer)
Noel Pullam held a sign during a rally for DACA recipients at City Hall Plaza in Dallas last fall.

(Rose Baca/Staff Photographer)

But immigration advocates say the lawsuit is six years too late. They say DACA’s existence for more than half a decade is enough to disprove the states’ arguments.

“Any assertion of irreparable damages is necessarily weak with regards to a program that has been implemented in Texas for six years, as throughout the country,” said Saenz, president and lead counsel for the Mexican American Legal Defense and Education Fund.

In June, the Department of Justice said it would not defend DACA in court after Paxton sued in a South Texas federal court. MALDEF was allowed to intervene on behalf of 22 DACA recipients, six of whom are Texas residents, a few days later after it successfully argued before Hanen that the Justice Department would not act in the best interest of the recipients.