Texas v. United States: A Once Old DACA Lawsuit Enters the Courtroom Again

On June 18th, 2020, the historic Supreme Court ruling Department of Homeland Security v. Regents of the University of California (2020) overturned the Trump Administration’s termination of Deferred Action for Childhood Arrivals, otherwise known as DACA [1]. Although this ruling reinforced DACA’s role as part of U.S. immigration policy, DACA has once again come under the spotlight due to a lawsuit in Texas that challenges the very foundation of the program. In light of DHS v. Regents of Univ. of California, District Judge for the Southern District of Texas, Andrew Hanen, encouraged both parties to bring the case before him once again. A ruling in favor of the plaintiffs, led by Texas Attorney General Ken Paxton, would be detrimental for DACA recipients as such a ruling would deem the creation of the program illegal.

A 2012 memorandum issued by the U.S. Department of Homeland Security created the DACA program to provide legal protection to undocumented immigrants brought to the United States as children [2]. DACA recipients receive a work permit to work in the United States and a renewable two-year deferment from deportations so long as they meet a certain set of eligibility requirements regarding their immigration status [3]. Since its adoption, DACA has enabled 800,000 eligible immigrants to work, attend school, and receive various benefits from the United States government [4]. Two years after the creation of DACA, in 2014, the Department of Homeland Security expanded DACA by creating the Deferred Action for Parents of Americans (DAPA) program to extend the same benefits conferred to DACA recipients to undocumented parents of U.S. citizens or legal permanent residents [5]. 

Subsequently, in 2017, under President Trump’s Administration, a memorandum issued by former Secretary of Homeland Security, Elaine Duke, terminated DACA and provided a “limited window” -- of an unspecified length -- for DACA recipients to respond to the recension [6]. In response to this sudden termination of the program, many legal challenges to the memorandum emerged, including, most notably, the case Department of Homeland Security v. Regents of the Univ. of California on which the Supreme Court issued a ruling in June 2020 [7]. In a 5-4 decision, the Supreme Court concluded that Secretary Duke’s recession was “arbitrary and capricious” as the decision had not undergone the proper judicial review required under the Administrative Procedures Act [8]. 

Despite the Supreme Court’s ruling in Regents of Univ. of Cal that preserved DACA, a lawsuit in Texas filed in 2018 presents another threat to the DACA program. In 2018, Texas Attorney General Ken Paxton initially filed a lawsuit against the United States, the Department of Homeland Security, and the United States Citizen and Immigration Services (USCIS) in the Southern District of Texas. Shortly after, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia joined the lawsuit [9]. The 2018 Texas et. al., v United States lawsuit is one of the first widely discussed lawsuits that challenges the DACA program itself. Previous lawsuits such as Texas v. United States and Department of Homeland Security v. Regents of the Univ. of California only challenged DACA’s implementation, but neither challenged the program itself. 

The plaintiffs’ central arguments rely on demonstrating that the creation of DACA overstepped the Executive Branch’s powers. They argue that the Executive Branch does not hold the power to grant citizenship under the constitution, so the lawsuit calls for the immediate recension of the program and cancellation of all DACA permits in existence [10]. Additionally, the plaintiffs state that the creation of DACA oversteps the Take Care Clause of The United States Constitution (Article II, Section 3) which limits Executive powers by requiring that the Executive Branch does not exercise powers allotted to Congress [11]. Thus, the 2018 Texas et. al. case, poses a greater threat to DACA than previous lawsuits because this case challenges the authority underlying the policy.

The plaintiffs’ first claim builds on unresolved aspects of previous cases challenging the DACA program. In 2015, Texas v. U.S. challenged the Department of Homeland Security’s expansion of DACA to include DAPA. The Fifth Circuit Court ruled that the case was non-justiciable as decisions related to immigration are delegated to Congress [12] which was later upheld by the Supreme Court in an equally split vote [13]. Due to this distinction, the court did not terminate DAPA and instead only granted injunctive relief which prevented DAPA from being implemented [14]. However, in Texas et. al., Attorney General Paxton argued, “the policy merits of immigration laws are debated and decided by Congress. The Executive Branch does not exercise a lawmaking role.” [15]. The plaintiffs in the 2018 case thus build on the precedent established in the 2015 case by challenging the Executive Branch’s authority to create the program --  a different argument than those used in previous lawsuits against DACA.

The plaintiffs’ second claim also relies on the separate authority granted to the Executive Branch and the Immigration and Nationality Act (INA). In the 2015 Texas v. U.S. case, the Fifth Circuit Court’s decision notes that the Executive Branch’s granting of lawful permanent residency through DAPA is, “an untenable position” for the Executive Branch because the “INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization” [16]. The plaintiffs in the 2018 Texas et. al. case cite this precedent to argue that the creation of DACA also constitutes an overreach of Executive power as the creation of DAPA did. However, the defendants of DACA, led by the Mexican American Legal Defense and Educational Fund, argue that DACA’s current implementation is consistent with the INA because it requires USCIS adjudicators to exercise discretion over the program. Defendants argue DACA’s current implementation differs significantly from the 2012 implementation, which the 2018 Texas et. al. case is based on, due to policy changes and therefore, no longer oversteps the Executive Branch’s authority [17]. 

Additionally, the lawsuit argues that DACA violates the Administrative Procedures Act (APA). The APA governs the practices of law and addresses procedural formalities that governmental agencies must follow when creating programs [18]. The plaintiffs argue that DACA did not undergo notice and comment rulemaking procedures during its creation [19]. In light of the Supreme Court ruling in Regents of Univ. of California, District Judge for the Southern District of Texas, Andrew Hanen, encouraged both parties to bring the case before him “incorporating any additional arguments drawn from the Regents decision that they deem fit,” specifically because there was no ruling over whether or not DACA was consistent with the APA [20]. If the plaintiffs are able to prove that the creation of DACA was in violation of the APA, then the courts could rule that the program’s creation was unlawful. Given Judge Hanen’s statement, the Biden Administration has taken measures to modify DACA to fortify the program against the claims in the lawsuit. Specifically, the Biden Administration will allow the public to submit comments in order to meet the requirements in the APA before signing an executive order to “preserve and fortify” DACA policy [21]. Although these modifications may weaken some arguments in the case, the case will likely still be heard by Judge Hanen. Nevertheless, the defendants will appeal if a ruling is made in favor of the State of Texas [22].

Unlike previous lawsuits against DACA, the 2018 Texas et. al. case attacks the foundation of DACA, putting the program at risk of suspension again. A ruling in favor of the plaintiffs would be detrimental to beneficiaries of the program because undocumented immigrants who rely on DACA would lose their visas which currently allow them to stay in the United States and would open them up to the possibility of deportation. Suspension of the program would place pressure on Congress to immediately pass legislation to provide recipients of the program security. However, Congress’ failure to pass substantial immigration reform for years is worrisome for DACA recipients because only the passage of legislation would grant them full protection and a path to citizenship.  

Edited by Radhika Goyal

[1] Department of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891, 207 L. Ed. 2d 353 (2020).

[2] U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, by Janet Naplitano (2012).

[3] “Deferred Action for Childhood Arrivals (DACA)” Georgetown University Library, Washington, D.C..

[4] “The Dream Act, DACA, and Other Policies Designed to Protect Dreamers” American Immigration Council, Washington, D.C. (2020).

[5] U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to individuals Who Came to the United States as Children and with Respect to Certain Individuals Who are the Parents of U.S. Citizens or Permanent Residents, by Jeh Charles Johnson (2014).

[6] U.S. Department of Homeland Security, Recission of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, by Elaine C. Duke (2017).

[7] “Department of Homeland Security v. Regents of the University of California” Harvard Law Review 134 (2020). 

[8] Department of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891, 207 L. Ed. 2d 353 (2020).

[9] “Complaint for Declaratory and Injunctive Relief,” State of Texas v. United States of America, 1:18-cv-00068 (2018).

[10] id at 4.

[11]  “ArtII.S.3.1.3.1 Take Care Clause: Overview” Constitution Annotated, Library of Congress, online at https://constitution.congress.gov/browse/essay/artII_S3_1_3_1/ (visited March 13, 2021).

[12] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[13] United States v. Texas, 136 S. Ct. 2271, 195 L. Ed. 2d 638 (2016).

[14] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[15] “Complaint for Declaratory and Injunctive Relief,” State of Texas v. United States of America, 1:18-cv-00068 (2018).

[16] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[17] “Defendant-Intervenors’ Brief in Support of Their Motion for Summary Judgement and In Opposition to Plaintiffs’ Motion for Summary Judgment,” Texas v. United States of America, 1:18-cv-00068 (2020).

[18] Administrative Procedures Act, Legal Information Institute, Cornell Law School, online at https://www.law.cornell.edu/wex/administrative_procedure_act (visited February 20, 2021).

[19] “Complaint for Declaratory and Injunctive Relief,” State of Texas v. United States of America, 1:18-cv-00068 (2018).

[20] “Order,” State of Texas et. al. v. United States of America, 1:18-cv-00068 (2020).

[21] Joseph R. Biden Jr. “Preserving and Fortifying Deferred Action for Childhood Arrivals” The White House, (2021), online at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/ (visited April 9, 2021).
[22] Dianne Solis, “Will DACA survive the litigation roller coaster?”, The Dallas Morning News (2020), online at https://www.dallasnews.com/news/immigration/2020/12/11/will-daca-survive-the-litigation-rollercoaster/ (visited April 9, 2021).