It took less than six months for an important group of Republicans to decide that President Donald Trump wasn’t being tough enough on unauthorized immigrants.
On Thursday, a group of Republican state officials from 10 states — led by Texas Attorney General Ken Paxton — called on Trump to stop granting relief from deportation and work permits to young unauthorized immigrants under the Deferred Action for Childhood Arrivals (DACA) program set in place by President Obama in 2012.
And if he doesn’t, they’re threatening to sue and force him to.
The letter (obtained by Chris Geidner of BuzzFeed News) raises the threat of the successful lawsuit filed by 27 Republican state governments against the Obama administration’s 2014 expansions of deferred action. The states successfully prevented the expansion of DACA (and a related and much broader program to protect parents of US citizens and green card holders) from going into effect, thanks to a deadlock at the Supreme Court in 2015. But it left DACA, in its original form, alone.
Now the states are threatening, using the legal argument that killed the second phase of Obama’s deferred action, that they’re going to go back and knock down the first one too.
It’s the boldest move yet by Republicans to challenge President Trump, who won the nomination on his hard line on immigration, for not taking a hard enough line on immigration. And it’s setting up a very tricky fight. The problem for the state officials challenging Trump now is that the high profile of the DACA program and the DREAMers — the very thing that makes it so important, to them, that Trump dismantle the program — also makes it politically difficult to go after them.
Frustration has been rising on the right with Trump’s DACA inaction
As a candidate, President Trump routinely promised to end President Obama’s “unconstitutional amnesties”; most people assumed that meant the DACA program, which some conservatives had criticized as an inappropriate use of executive power. But after being elected president, he started talking about how difficult it was to balance being “tough” with having “heart” for the young unauthorized immigrants known as DREAMers (the population DACA is intended to cover) who’ve grown up in the US, many of whom were “terrific people.”
The Trump administration considered an executive order to end the DACA program, forcing the 700,000 immigrants currently protected under it to lose their protection and work permits over the course of two years. But it was never signed. Even when the Trump administration moved in early June to end the related program known as DAPA — an “executive amnesty” that had never actually gone into effect — it explicitly left DACA alone.
It’s been the biggest disappointment of Trump’s presidency to some of his earliest and most fervent defenders. And many immigration hawks have started to grow impatient.
Some conservatives, like Rep. Steve King (R-IA), believe the DACA program is a haven for criminals and that DACA recipients should be deported. Others might not actively want the DREAMers deported but still feel it’s inappropriate to explicitly keep them safe from deportation. Acting Immigration and Customs Enforcement Director Thomas Homan has said repeatedly that unauthorized immigrants in the US “should look over your shoulder, and you need to be worried”; to critics, the guarantee offered by DACA undermines that threat.
Despite their frustrations, however, few have directly picked a fight with the president about DACA. (The anti-immigration group ALIPAC withdrew its endorsement of him in May over the issue, but they’re not considered to be a major player either among immigration hawks or in the conservative movement.) And elected Republican officials have generally been hesitant to directly criticize Trump’s actions. But now a group of them are calling him out directly on one of his own signature issues.
Will the threat work? It’s unclear.
Legally, it’s a little weird to cite the case against DAPA as evidence that DACA is unconstitutional; while the Fifth Circuit’s decision in that case was pretty harsh on DACA, it also took pains to distinguish the two programs in a way that made DACA seem more defensible. And since the Trump administration hasn’t been shy about stripping immigrants of their DACA protections, and even deporting them, it might have an easier time arguing that DACA isn’t just a backdoor way to grant legal status.
On the other hand, the DAPA lawsuit made it pretty clear that federal Southern District of Texas Judge Andrew Hanen, and the Fifth Circuit, is skeptical of protecting groups of unauthorized immigrants as a general rule. It seems pretty likely both would side against DACA if they got the chance. And if Paxton leads another state lawsuit, he’d likely start it in Hanen’s district — where a favorable ruling is nearly guaranteed.
Politically, the fight is tougher. DREAMers are the most politically sympathetic unauthorized immigrants there are — they’re US-raised, fluent in English, well-connected. There’s a reason the DACA program didn’t get the kind of legal battle when it was introduced in 2012 that the expansions of deferred action would get two years later — few Republicans wanted to take a stand against people who’d graduated from American schools and were starting American careers.
That calculus may be different for those 10 state officials now. But it might not be different for a president who appears to have discovered, however belatedly, that keeping all the immigration promises conservatives think he made is seen by others as showing a lack of heart.