Posted on September 5, 2018

Texas Judge Says DACA Is Probably Illegal, But Leaves It in Place

Joel Rose, NPR, August 31, 2018

Supporters of the Deferred Action for Childhood Arrivals Act and others demonstrate outside the 9th Circuit Court of Appeals in Pasadena, Calif., in May. The Trump administration failed to convince a U.S. appeals court that it was justified in ending the program, but a Texas judge on Friday ruled in a separate case that DACA was likely illegal.

A federal judge in Texas declined to issue a preliminary injunction in a case over the future of DACA — but he says the six-year-old program is likely unlawful.


But the order from Federal District Judge Andrew Hanen, issued Friday afternoon, may be only a temporary reprieve for DACA recipients: Hanen held that the plaintiffs are likely to succeed in their argument that the program is unlawful because it oversteps the authority of the executive branch.

“If the nation truly wants a DACA program,” Hanen wrote, “it is up to Congress to say so.”

Still, Hanen declined to put even a temporary halt to DACA because he found that Texas and the other states waited too long to bring their case.


Texas Attorney General Ken Paxton is leading the coalition of states that are challenging DACA. He argues that Hanen’s order vindicates their position as well.

“We’re now very confident that DACA will soon meet the same fate” as DAPA, Paxton said in a statement. “President Obama used DACA to rewrite federal law without congressional approval. Our lawsuit is vital to restoring the rule of law to our nation’s immigration system.”

Paxton and the other plaintiffs are likely to appeal Hanen’s order to the 5th Circuit Court. A victory for them would increase the likelihood that DACA’s fate ultimately will be determined by the Supreme Court.