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Commentary: Bigotry, politics behind states’ DACA challenge

The Trump administration announced Tuesday that it will end the Deferred Action for Childhood Arrivals program. DACA has protected its recipients, known as “Dreamers,” from deportation and has authorized them to work legally. This group includes undocumented persons whose parents brought them to the United States as children, and who met rigorous criteria ensuring their good moral character. Unless Congress acts, 800,000 people, all Americans but for the accident of birth, will suffer unimaginably.

Eleven state officials, including Texas Attorney General Ken Paxton, forced President Trump’s hand. They threatened to sue him this past June if he did not rescind DACA. As scrutiny of their role in this humanitarian catastrophe mounts, the 11 officials will insist that they have nothing against the Dreamers. DACA is illegal, and their respect for the rule of law required them to act, they will say.

CONTINUING COVERAGE: Advocates call for Congress to take action as Trump rescinds DACA.

This rule of law claim is nonsense. As recent history demonstrates, the 11 officials acted because of xenophobia and cravenness.

President Barack Obama announced DACA in June 2012. Hundreds of thousands of young people came in from the shadows to register for relief. In November 2014, Obama attempted to add a second program, called Deferred Action for Parents of Americans (DAPA). It aimed to extend DACA’s benefits to parents of U.S. citizens who satisfied rigorous eligibility criteria. Twenty-six states quickly sued, claiming that Obama lacked the constitutional power to create DAPA without congressional authorization. This lawsuit ignored DACA.

The states filed their December 2014 case in Brownsville, hoping to draw Judge Andrew Hanen. Hanen, a notorious anti-immigrant zealot, indeed got the case and struck down DAPA as unlawful. An appellate court upheld his decision, and in June 2016 the U.S. Supreme Court split 4-4 on DAPA’s legality. Hanen’s decision thus remains in place.

Here’s the key fact: DAPA and DACA are identical in all legally relevant respects. If DAPA was illegal, then DACA is too. Why didn’t Texas and the other states challenge DACA — as well as DAPA — when they filed their lawsuit in Hanen’s court? If respect for the rule of law requires them to act now, why didn’t this commitment prompt action several years ago?

Perhaps the states had a strategic reason to ignore DACA in 2014. Contrary to their public assertions, the states surely knew that DAPA and DACA pose difficult legal questions. They also surely appreciated that, whatever the law has to say, DACA’s morality is unassailable. Most judges, if not Hanen, would swallow hard before sending 800,000 Dreamers back to immigration purgatory. Maybe the states wanted to make the case against DAPA first. Once they won their precedent, they could wield it against the more sympathetic DACA program.

But why then did the 11 officials wait until this past June to demand DACA’s termination? Hanen ruled against DAPA in February 2015. A DACA lawsuit filed in his court likely would have won after this point. It certainly would have prevailed after the appellate court upheld his DAPA decision a few months later. If DACA indeed offends the rule of law, why did the 11 state officials let two years lapse before they acted?

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The fact is that the 11 officials care nothing about the rule of law shibboleth. Politics, not principle, explains their delay. The 2016 election demonstrated that xenophobia can yield a lot of votes for politicians who kowtow to it. The harder the line they take on immigration, the 11 officials now know, the more they can mobilize bigotry to their electoral advantage. These officials will surely tout their role in the DACA affair when they run in contested primaries for governor or U.S. senator.

Fewer than half of the states that attacked DAPA have joined the effort to end DACA. At least some politicians have enough decency to put 800,000 lives before their electoral fortunes. The 11 officials who could not resist bigotry’s siren song have truly distinguished themselves for their self-serving, craven action.

Marcus is a University of Arizona law professor.

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