In a letter to Attorney General Jeff Sessions announcing their intentions, the officials touted their credentials as “the state plaintiffs that successfully challenged the Obama Administration.”
They were referring to their success in convincing a federal court, in 2014, to block an expanded version of DACA aimed at protecting the parents of DACA recipients.
At the time, challenging DACA itself—a broadly popular program designed for young people who grew up as Americans—was politically risky, even in deep-red states. But with a new Administration in the White House, these officials are emboldened.
Earlier this week, John Kelly, the Secretary of the Department of Homeland Security, met with twenty members of the Congressional Hispanic Caucus in Washington. What was said in the room became bigger news in immigrant communities across the country than the latest revelations of the Trump campaign’s contact with Russians. Kelly told the lawmakers that D.H.S. lawyers didn’t think DACA would withstand a legal challenge, and that, if the state officials made good on their promise to sue, the Administration might not defend DACA in court. Still, Kelly said, he had discretion as the head of D.H.S. to determine whom immigration agents should prioritize for deportation; DACA recipients, he said, “fall into the category of people who should stay in the U.S.” Just a few weeks earlier, Kelly had announced that the Administration planned to leave DACA intact.
Now, the lawmakers worried that the Administration was trying to have it both ways: Trump could continue to claim to have a “big heart” for DACA recipients, and thus avoid a difficult political fight, while allowing the policy to be challenged and blocked in court, which would please his base. So did the Administration want to protect DACA or not? “We couldn’t get a straight answer,” Representative Joaquin Castro, a Texas Democrat who attended the meeting, told me.
There are nearly a million DACA recipients in the United States. Beneficiaries of the program can, among other things, acquire work permits and driver’s licenses. They are not granted full legal status, but they can lead more normal lives —getting loans, attending college—in plain view of federal immigration authorities. Congress never approved the program, however. It was created under an executive order signed by President Obama.
When the expanded version of DACA was challenged in court, in 2014, judges took issue with the idea that the President could put in place such a policy unilaterally. The case went to the Supreme Court last year, where the Justices deadlocked, 4–4, at a time when there was an empty seat on the court. As a result, lower-court rulings that blocked the expansion remained in place—and they rested on legal reasoning that endangered the existence of DACA itself.
The state officials now threatening DACA are from states that have embraced anti-immigration policies in recent years: Texas, Alabama, Arkansas, Louisiana, Idaho, Kansas, Tennessee, South Carolina, Nebraska, and West Virginia. “Anti-immigrant activists feel there’s momentum,” Kamal Essaheb, the policy director of the National Immigration Law Center, told me. “They feel the election was won because of their issue. They feel they’re owed something.”
The advocacy groups who promote anti-immigrant policies, for their part, often try to sound non-ideological when it comes to DACA. “This program was improper under the Obama administration, and it’s still improper,” Jessica Vaughan, who works at the Center for Immigration Studies, an influential anti-immigration think tank, recently told the Washington Post. “Congress is the branch of our government that has the authority to decide who gets to stay in this country as a legal immigrant, not the president.” Yet these same groups also applaud President Trump for signing executive orders to round up and deport more people.
In 2014, twenty-six states sued Obama to block the DACA expansion; so far, only ten are threatening to attack DACA, but ten is plenty. “These guys are willing to call the new Administration’s bluff,” Felicia Escobar, who worked on immigration policy in the Obama White House, told me. “They seem to have made the calculation that this actually helps them with their local politics.” Leading the charge is Ken Paxton, the Attorney General of Texas.
As Lawrence Wright wrote recently in the magazine, Texas has become a testing ground for conservative policies in the Trump era. In May, after taking cues from the Trump Administration’s rhetoric about “sanctuary” cities, Texas’s governor, Greg Abbott, signed into law one of the most restrictive anti-immigrant bills in the country.
The core arguments against DACA rely on the notion that undocumented immigrants are taking jobs away from Americans while also benefitting from taxpayer-funded resources.
This isn’t the case—for one thing, undocumented immigrants do pay taxes—but the argument has a ready populist appeal. “If you talk to the average person in South Carolina, they don’t know even what DACA is,” Diana Pliego, a DACA recipient who grew up in the state, told me recently. “They don’t know what you can’t have because you’re undocumented.
The politicians thrive on the fact that their constituency is so unaware of the issues, and they take advantage by spinning their own narratives. These are students that South Carolina raised—you’ve invested in them already.
All of a sudden you want to take them out of the workforce?”