WASHINGTON — The Trump administration is urging a federal court in Texas to declare DACA illegal, setting up a potential conflict that could allow the government to shut the program down within a matter of weeks.
While this latest development has received little attention, it could suspend or stop a federal initiative that has allowed 700,000 young people, known as Dreamers, to avoid deportation.
Ali Noorani, executive director of the National Immigration Forum, said the move could "eliminate work authorization and protection from deportation for nearly a million people who are contributing to our economy."
Short for Deferred Action for Childhood Arrivals, DACA is the Obama-era policy that allows children of immigrants who came to the U.S. illegally to remain here if they were under 16 when they arrived and if they arrived by 2007.
In a motion filed late Friday, Justice Department lawyers told a judge in Texas that the program violates federal immigration law. Assuming, as expected, that the judge grants the request from DACA opponents and orders the government to stop enforcing DACA, the ruling would conflict with orders from two other federal courts that require continued enforcement of the program.
If faced with competing court orders, the Justice Department said it would then rush to the U.S. Supreme Court and tell the justices that the government would be in violation no matter what it did — keeping DACA going would violate the Texas order, while trying to shut it down would violate the other court orders.
In that event, the government would ask the Supreme Court to put a hold on all the lower court rulings. And if the justices agreed, the Trump administration would be free to shut DACA down immediately, because nothing would be in effect to prevent the government from taking that action.
Advocates for immigrants condemned the government's latest legal move.
"The fear factor that has resulted from the Justice Department's filling in Texas is really scary for DACA recipients across the country," said Karen Tumlin, director of legal strategy at the National Immigration Law Center.
The future of DACA wound up in court after the Trump administration said last September that it would end the program within six months. In response to lawsuits, federal courts in California and New York ruled that the government's legal justification for shutting it down was faulty. They ordered the administration to continue accepting renewal applications from DACA participants, which must be filed every two years.
A third federal judge, in Washington, reached a similar conclusion but put his order on hold to give the government more time to explain its position.
Opponents of DACA, led by Texas Attorney General Ken Paxton and joined by six other states, filed their own lawsuit in May, arguing that DACA is illegal and urging the court to shut the program down.
The federal district judge overseeing the case, Andrew Hanen of Brownsville, Texas, will likely rule in their favor. Three years ago he blocked another Obama immigration program intended to let parents who came here illegally remain in the U.S. if they have U.S.-citizen children. Texas and the other states have argued that DACA is illegal for the same reasons that doomed that program, known as DAPA.
Earlier this year, the Trump administration asked the U.S. Supreme Court to take up the DACA challenges, even before the federal appeals courts had their say. The justices declined that invitation in February but said they assumed the lower courts would move quickly.
This latest development would give the government a new reason to return to the Supreme Court, and its chances could be better this time, given the potential for conflicting lower court orders. If the justices agree, the case would probably not be heard until the fall. But in the meantime, if the Supreme Court blocks all the lower court rulings, the government would be free to shut DACA down.
Republican moderates have been pushing for a vote in the House to grant permanent legal status to DACA recipients. But even if that effort succeeds, its prospects are doubtful in the Senate. And in the unlikely event that Congress were to pass such a law, Republican congressional leaders say they believe President Donald Trump would veto it.
So while DACA appeared likely a short time ago to stay on safe ground at least through the fall, its future is once again in doubt.