- The Washington Times - Monday, July 3, 2017

Texas has put President Trump over a barrel with its threat to sue to stop the 2012 deportation amnesty for Dreamers, said legal analysts, calling the state’s case as close to a slam-dunk as possible.

Known in Washington as DACA, the amnesty was started by President Obama — and was roundly criticized in last year’s campaign by Mr. Trump. Now in office, though, Mr. Trump has reversed himself and kept DACA intact, approving tens of thousands of new and renewal applications.

But the program has been on borrowed time for more than a year, ever since a series of court battles ended with the June 2016 Supreme Court ruling that invalidated Mr. Obama’s second amnesty, the 2014 program known as DAPA.

Texas Attorney General Ken Paxton has now officially pressed the issue, saying in a letter last week that if DAPA is illegal, then so is DACA. He gave Mr. Trump until early September to phase out the program or else he will force the courts to rule.

“This is a masterful stroke by Texas,” said Josh Blackman, an associate professor at South Texas College of Law. He said Mr. Trump has been trying “to have it both ways” but will now have to choose.

“If Texas decides to litigate this, you’ll now have the Trump administration defending in court an illegal program that they said is illegal,” he said.

DACA was controversial from the start. Mr. Obama for years publicly doubted he had the power to circumvent Congress and issue such a broad amnesty. He reversed himself just before the 2012 election when he was desperate to shore up support among Hispanic voters.

Now it’s Mr. Trump who is searching for a way to treat Dreamers with “heart” and who is struggling with the legal issues.

Trump administration officials have been silent on the threat by Mr. Paxton and eight other state attorneys general and one state governor — all Republicans.

Dreamers, who just weeks ago cheered the administration’s announcement that it was maintaining DACA, were furious at the latest turn and called Texas’ move racist.

“This is our home, and we are here to stay,” said Greisa Martinez, an advocacy director at United We Dream Action, a lobby for Dreamers.

Activists vowed to fight in the political arena, pleading with congressional Republicans to rally to Mr. Trump as he tries to keep the DACA program running.

But legal analysts said there may not be much anyone can do to rescue a program that suffers from the same legal flaws as DAPA.

“The cases are nearly identical. It’s a clear winner for the states, and I’m very happy Texas has sent this letter,” said Kris Kobach, secretary of state in Kansas and one of the key lawyers who has helped plot legal strategy for advocates of a crackdown.

DACA applied to young adult illegal immigrants who came to the U.S. as children, who managed to keep a relatively clean criminal record and who worked toward a high school degree. They called themselves Dreamers, and they have long been the most sympathetic cases in the immigration debate.

DACA brings with it a two-year stay of deportation and a work permit, entitling the immigrants to a Social Security number and the chance to earn a driver’s license and receive other taxpayer benefits.

In 2014, Mr. Obama went even further, proposing to expand DACA to Dreamers of all ages and to include perhaps 4 million parents of U.S. citizens and legal permanent residents. That expansion to parents was the DAPA program.

Texas led 26 states in suing to stop DAPA. A federal district judge in Texas, and then the 5th U.S. Circuit Court of Appeals, blocked the program nationwide, ruling it was illegal. The Supreme Court last year deadlocked 4-4, leaving the appeals court ruling in place.

If anything, DACA’s case could be an even tougher sell. While the Obama administration’s attorneys argued that DAPA recipients had an eventual path to legal status under existing law, based on the legal status of the children, that does not necessarily exist for DACA recipients.

Immigrant rights advocates said the best legal hope they have is that judges who stopped DAPA before it took effect would be more reluctant to halt DACA, which has been in effect for five years and is protecting 780,000 people.

“That likely has legal implications,” said Kamal Essaheb, a lawyer and director of policy and advocacy at the National Immigration Law Center. “These are people who entered into a program with a certain understanding about how they were going to be treated, about how their information was going to be treated. You can’t unwind that the same way you can a program that hasn’t been kicked off yet.”

Mr. Essaheb, who was approved for DACA in 2012, said Dreamers are counting on Mr. Trump to defend them and see the fight as more of a political showdown than a legal matter.

“Part of the battle’s going to be in the court, but for us, the reality is we have 800,000 lives that are being impacted by the uncertainty that’s been inserted here,” he said. “Now is the opportunity to see whether [the president] puts his money where his mouth is.”

Activists point to research showing that nearly half of DACA recipients since 2012 have managed to raise their earnings, a majority have been able to obtain driver’s licenses and a small fraction have even been able to buy homes.

Stephen Legomsky, a former Homeland Security Department lawyer and now professor at Washington University in St. Louis, said it’s difficult to differentiate the workings of the two programs from a legal standpoint, though the smaller number of DACA recipients may help the program’s cause in the courts.

“I don’t know if that will be enough of a difference,” he said.

If Mr. Trump fights the case, he will have to convince the same court with Judge Andrew S. Hanen, who first invalidated DAPA.

After Judge Hanen, the case would go back through the 5th Circuit and, all sides say, would almost certainly end up back at the Supreme Court.

There, it would likely come down to Justice Anthony M. Kennedy.

Mr. Blackman said Texas’ legal argument appeared carefully crafted to appeal to Justice Kennedy, asking for a phase-out of the current program rather than a full stop that would toss current DACA beneficiaries out of status.

Mr. Legomsky said the Trump administration could try to head off the entire legal fight by changing the guidance the Obama administration issued — though he said it’s not an avenue he’s advocating.

Texas’ standing to challenge the DAPA program stemmed from the state’s subsidy for driver’s licenses, which the state is required to dole out to those deemed “lawfully present” in the U.S. If the Trump administration deletes the lawful presence designation from DACA, then it would remove the eligibility for driver’s licenses.

That would be a serious blow to the Dreamers, but it could also sap Texas of its chief argument for standing to sue.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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