Ken Paxton, the Texas attorney general, may be on the verge of pulling the biggest legal stunt a state has ever attempted on a sitting president. And on a president of his same party, no less — one who has built his brand and brief time in office around being a master deal-maker.
In a letter Paxton addressed to Jeff Sessions in late June, he and attorneys general from nine other states, plus the governor of Idaho, gave Donald Trump until September 5 to rescind the Deferred Action for Childhood Arrivals program. The initiative, better known as DACA, has for the past five years granted some 800,000 undocumented immigrants — all of them brought to the U.S. as children — a temporary reprieve from deportation and work authorization.
Nothing about Paxton’s missive is enforceable, which is to say Trump and his lawyers have no legal obligation to do anything with it. And yet somehow the letter has taken on a life of its own, worrying Dreamers — as DACA beneficiaries are known — and showing up in hundreds of articles and editorials lamenting the president’s predicament on the program’s future. As if somehow he is between a rock and a hard place and has no choice but to end DACA. God forbid Texas make good on his threat and sue a friendly administration.
This is a false choice. Texas’s threat lacks merit, is internally inconsistent, and there’s little evidence that it was dreamed up for any other reason than political grandstanding. If Trump is the grand negotiator that he claims he is, he would be well advised to ignore it.
First things first: Paxton’s “deadline” is a sham. Federal policy that applies nationwide doesn’t rise or fall because someone threatens a lawsuit. And any president, no matter the party, would look weak if his decision-making depended on a cease-and-desist letter that shows up in the mail. Thomas Saenz, a lawyer who has fought Texas before the Supreme Court over another program that is similar in nature to DACA, is correct to note that Trump and Trump alone has the upper hand here. He may, quite literally, throw Paxton’s letter in the trash and keep DACA on the books if he so wishes.
That’s not to say Paxton doesn’t have some leverage, but it’s not much. In 2015, he led a coalition of 26 states that convinced a sympathetic federal judge near the Mexico border, some 350 miles from the Texas capital, that a companion program to DACA, which expanded protections to parents of American citizens and green-card holders, was unlawful because it was not rolled out according to the Administrative Procedure Act. But tellingly, neither Judge Andrew Hanen nor the appeals court that reviewed his ruling went much further than that. Texas wanted the courts to rule that President Obama had violated the Constitution itself — that deferring someone’s deportation was somehow an abdication of his duty to “take care” that the laws be faithfully executed.
Courts never touched that issue. And rightly, Paxton omits it from his threat to Trump. Sessions and other immigration hard-liners in the Trump administration may believe the tale that DACA is unconstitutional, and could be preparing talking points to that effect. But no court has ever so held. And Trump can rest assured that a judge will be hard-pressed to disturb a five-year-old policy that, for all its political frailty, remains settled in practice, if not as a matter of law.
This leads to another anomaly in the Paxton letter: It was signed by only 10 of the 26 states that mounted the legal challenge that ended up in Hanen’s courtroom. Where are the other 16? Your guess is as good as mine. Mississippi is one notable absence: The state went to federal court a little over a week after Obama announced DACA in 2012, only to see its efforts fail because Mississippi couldn’t show the program caused it any concrete harm. In the past month, I’ve sent three separate emails to and left a voicemail for Drew Snyder, an adviser to Governor Phil Bryant who has worked on DACA-related issues, and I’ve yet to receive a response to why Mississippi didn’t sign on to Paxton’s letter.
The answer, naturally, may be that the letter is little more than political posturing. Paxton has insisted that his intention is not to see Dreamers deported, or even to see their DACA status revoked. He only wants for Trump to “phase out” the program. But that’s disingenuous: Once the protections are removed and existing permits expire, any and all of the hundreds of thousands who are DACA recipients will be fair game for Trump’s deportation machine. To eliminate deferred action is to initiate it.
That would be a political disaster for Trump. Dreamers remain a popular group with Democrats and Republicans alike, are a boon to the economy, and Trump himself has said that they shouldn’t “be very worried” because he has “a big heart.” If those words mean anything to him — and as of Thursday, Trump seemed on the brink of pulling the plug on DACA, according to a Fox News report — the president should stand his ground against Texas and reject the bad deal he’s being offered. There’d be a lot to gain and very little to lose. And Trump doesn’t like losing.
