Department of Homeland Security (DHS) Secretary John Kelly admitted that the Obama executive action program known as Deferred Action Against Childhood Arrivals (DACA) might not survive a legal challenge threatened by Texas and ten other states.
Secretary Kelly told members of the Congressional Hispanic Caucus that DACA could be in jeopardy if the threatened lawsuit moves forward. Breitbart Texas reported Texas Attorney General Ken Paxton authored a letter to U.S. Attorney General Jeff Sessions threatening to sue the government if DHS does not phase out the DACA program. Attorneys general from nine other states and the governor of a tenth state joined in signing the letter.
Kelly met with members of the Congressional Hispanic Conference behind closed doors where he delivered the message that the government might not be able to defend the program created under the Obama Administration, the Washington Post reported. DACA put a temporary halt on deporting certain people who were brought to the U.S. illegally by their parents.
The secretary would not take any questions following his meeting. However, DHS spokesman David Lapan told the reporter, “This is what he’s being told by different attorneys, that if it goes to court it might not survive.”
He warned that if Congress fails to pass a bill protecting DACA “they’re leaving it in the hands of the courts to make a decisions.”
The Hispanic Congressional leaders asked Kelly to support the “Bridge Act,” a bipartisan bill designed to preserve DACA. Following the meeting, a “visibly shaken” Representative Luis V. Gutierrez (D-IL) told the Washington Post, ““Jeff Sessions is going to say, ‘Deport them.’ If you’re going to count on Jeff Sessions to save DACA, then DACA is ended.”
Defending DACA in court could prove to be difficult. Then-Texas Attorney General (now governor) Greg Abbott, and the other members of the coalition of states, successfully sued the Obama Administration over the Deferred Action for Parents of Americans (DAPA) program, Breitbart Texas reported. The Fifth Circuit Court of Appeals upheld the order by Judge Andrew Hanen and the U.S. Supreme Court denied the government’s appeal to the highest court, leaving the lower court ruling in place. Following the November election, the Obama Administration announced it was leaving the issue to the Trump Administration to handle.
In June, Breitbart News reported Secretary Kelly “formally killed off President Obama’s” DAPA program. Many of the same arguments about President Obama’s authority to create DAPA by executive action could be made against DACA.
“We respectfully request that the Secretary of Homeland Security phase out the DACA program,” Texas Attorney General Paxton and the coalition wrote in their letter to Attorney General Sessions. “Just like DAPA, DACA unilaterally confers eligibility for work authorization and lawful presence without any statutory authorization from Congress.”
“For these same reasons that DAPA and Expanded DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful, the original June 15, 2012 DACA memorandum is also unlawful,” the letter continues. “The original 2012 DACA program covers over one million otherwise unlawfully present aliens.”
The letter concludes stating that if the Secretary Kelly does not phase out the DACA program, their original lawsuit will be amended to challenge “both the DACA program and the remaining Expanded DACA permits.”
Lapan told reporters that Kelly spoke with several lawyers, both inside and outside the department. “Most of them felt that DACA, as it exists, is not legally sustainable,” Lapan said.