The Biden administration and immigration activists asked a federal appeals court on Thursday to preserve as much of the Obama-era DACA program as possible, saying whatever its legal questions, the program has been around too long to just cancel it altogether.
Texas is trying to get the program shuttered, arguing it is illegal. And under the precedents of the 5th U.S. Circuit Court of Appeals, that is a binding holding.
But the federal Justice Department, immigrant-rights groups and a coalition of Democrat-led states said Texas’s case should be tossed because the state doesn’t have legal standing to sue. And they said even if the court sides with Texas, it should keep DACA in place in other states, which say the illegal immigrants have been a boon to their communities.
They argued that in the 12 years since President Obama created Deferred Action for Childhood Arrivals, families have come to rely on it and structured their lives around it.
“This is a pretty extraordinary case. It’s not just the reliance interests of the 600,000 DACA recipients,” said Jeremy Feigenbaum, New Jersey’s solicitor general. “We’re also talking about 250,000 U.S. citizen children. … It’s also workers at companies that are owned by CEOs that are DACA recipients, or founders that are DACA recipients.”
DACA covers illegal immigrant “Dreamers” who came to the U.S. before age 16 — usually brought by parents — who have kept a relatively clean record and who have worked toward an education.
It grants a stay of deportation and offers work permits, which bring some taxpayer benefits and allow migrants with no firm legal status to still put down roots in American communities.
After repeatedly saying he lacked the power to do something like DACA, Mr. Obama reversed himself and announced the program amid the 2012 presidential campaign, as he was struggling to keep Hispanic voters in his camp.
President Trump tried to wind down the program. The Supreme Court, in a 2020 ruling, said his administration cut too many corners and didn’t take into account the interests of the hundreds of thousands of Dreamers who held DACA status.
The Supreme Court has never ruled definitively on the legality of DACA itself — though the 5th Circuit has ruled, finding the program skirted the law.
Joseph N. Mazzara, Texas’s assistant solicitor general, told the appeals court on Thursday that those previous rulings remain binding.
The questions before the court now are whether Texas’s legal standing to bring the lawsuit or the ability of lower courts to halt the program nationally have changed, thanks to recent Supreme Court rulings.
Texas says it faces a legal injury — and thus has standing — because DACA recipients use state services. It introduced evidence that if DACA were to disappear, a significant chunk of those covered by the program would leave the country on their own.
And Mr. Mazzara said the court should follow its own precedent and apply its ruling against DACA to the entire nation.
Judge Stephen A. Higginson dominated Thursday’s argument, firing questions at both sides.
He was skeptical of Texas’s claim of legal injury, saying the Supreme Court’s 2023 case that found Texas didn’t have standing to challenge Homeland Security’s immigration enforcement priorities means the state may not have standing to challenge DACA, either.
He said that case trumps the 5th Circuit’s own precedents.
“The law has evolved since then,” said Judge Higginson, an Obama appointee
He also seemed sympathetic to the Democrat-led states’ argument that even if Texas were to prevail, DACA should be preserved in other states — and particularly the nearly two dozen Democrat-led states that have said DACA recipients are a benefit to their economies.
The other two judges on the three-judge panel — one appointed by President Reagan and the other by President George W. Bush — were less vocal during Thursday’s 75-minute oral argument.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.