Texas Should Reinstate Its Suit Challenging DACA

In response to the Trump administration’s decision to phase out the Deferred Action for Childhood Arrivals (DACA) program beginning next March, Texas and nine other states agreed not to file a lawsuit challenging the constitutionality of the program. Just a few days ago that lawsuit seemed moot, but just as suddenly, it’s not.

No sooner had Texas dropped its suit, a coalition of 15 states and the District of Columbia announced their own lawsuit seeking to prevent the Trump administration from ending DACA. As absurd as it might seem, the Gang of Sixteen is arguing that it is unconstitutional for the current president to terminate an unconstitutional policy implemented by a previous president.

To be clear, DACA was an administration policy (not a law, or even an executive order) created an implemented by President Obama. Not only is it merely a policy, it is one that stands on “shaky legal ground” in the view of none other than Senator Dianne Feinstein, the second ranking Democrat on the Senate Judiciary Committee, and one that President Obama called “temporary.”

Presidents do not have the authority to change laws (although that is exactly what President Obama said he did after implementing DACA in 2012). They do have the authority to change policies, which is kind of what elections are all about.  As Obama noted in the months leading up to the announcement of DACA, while he was still claiming (correctly) that he did not have the authority to grant blanket immunity from deportation, “I am not the emperor of the United States.” He may have changed his mind about that a few months later, but he certainly is not a pope whose policy encyclicals are binding on future pontiffs.

Nevertheless, at a moment in history when the judiciary is as politically polarized as the rest of the nation, it is highly likely that the Gang of Sixteen will find a sympathetic judge who will issue an injunction barring President Trump from ending the previous administration’s policy and carrying out his own policy. It is almost inconceivable that such a ruling would not eventually be reversed by the Supreme Court. But that is not the point. The objective of the plaintiffs is to see if they can run out the clock on President Trump’s term in office before he has a chance to implement his policy.

The best strategy may be to fight fire with fire. Texas Attorney General Ken Paxton has his lawsuit sitting on his desk ready to go. If the Gang of Sixteen is intent on moving forward with its frivolous suit, then the need to test the constitutionality of DACA – which seemed to be a pointless exercise just a few days ago – is suddenly more urgent than ever. Bring it on.

About Author


Ira joined the Federation for American Immigration Reform (FAIR) in 1986 with experience as a journalist, professor of journalism, special assistant to Gov. Richard Lamm (Colorado), and press secretary of the House Defense Appropriations Subcommittee. His columns have appeared in National Review, LA Times, NY Times, Washington Post, Newsweek, and more. He is an experienced TV and radio commentator.


  1. avatar

    No doubt they will find a judge somewhere to agree with them. It’s the same as the “Muslim ban” which was not a ban and only covered the same countries that Obama had identified before as countries of special concern because it was difficult to do adequate checks. We can’t even get it right half the time when people are from countries with decent record keeping. And as noted, Obama did not call DACA an executive action but a policy. How then does any court tell a president what his “policy” can be.

    It’s like when the Ninth Circuit Court of Appeals struck down his Muslim ban. They admitted that he had the power to do it under federal law that had previously been upheld by the Supreme Court, but then came to the head scratching conclusion that it was his “intent” as expressed during the campaign that made it unconstitutional. Where in the constitution is the power granted to the judiciary to psychoanalyze the intention of the executive or, for that matter, Congress. Laws are constitutional or not, like them or not. By their reasoning the very same ban by Hillary would have been ok because she did not have the same intent.

    • avatar

      Not the same as the Muslim ban….most if these people made the American Dream to those who abused them n your SS…..get your facts straight….. generalizing is complete ignorance on your side …