The Trump administration is scrambling to make a decision on the direction they want to move regarding the Obama era Deferred Action for Childhood Arrivals (DACA) program, as 9 states are set to challenge it in court starting Sept. 5.
To date, neither the White House nor the Justice department has said whether or not they will defend the program in court, despite President Trump’s assertions that he would protect recipients of the program, commonly known as “dreamers.”
Obama’s institution of DACA, which gave nearly 800,000 undocumented immigrants brought to the United States as children a work permit and protection from deportation, was widely criticized by Republicans at the time. Since, it has gone through a complicated series of court trials, essentially resulting in the indefinite suspension of some of its main tenets.
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 extension would’ve made the program far more wide ranging, giving benefits to over 3.6 million undocumented immigrants with children in the United States.
But on the grounds that it would be too burdensome for states to provide driver’s licenses to the undocumented immigrants in question, the extension was struck down.
The Sept. 5 lawsuit, led by Texas Attorney General Ken Paxton (R), seeks to eradicate the legislation altogether, and will undoubtedly vie for the attention of Judge Hanen.
Support for the legislation is split within the White House, with President Trump and new Chief of Staff Gen. John Kelly voicing support, and Attorney General Jeff Sessions and policy analyst Stephen Miller offering opposition to extending benefits to undocumented immigrants in any fashion.
In a press conference regarding separate immigration legislation last week, Miller said the White House hasn’t yet decided how they will move forward on 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 referred to DACA and DAPA as “President Obama’s two illegal executive amnesties,” he has simultaneously been extremely supportive of the legislation, keeping it intact despite terminating its extension.
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.”
Critics are angry he has gone back on campaign promises to get rid of the program.
“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.
Trump does have some leeway in handling the situation. Legal obstacles could render the states’ lawsuit moot.
“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.”
But proponents of the legislation are fearful of a systematic bias among legal officials against the legislation, starting with Attorney General Jeff Sessions.
The ACLU is armed and ready to threaten legal action should they find any collusion between state and federal officials before the trial. “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.
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