Alabama has only a small number of illegal immigrants enrolled in a quasi-amnesty program created by former President Barack Obama’s administration, but that did not stop the state from joining the legal effort to tear it down.
Alabama this week was one of six states to sign on to a lawsuit led by Texas against the Deferred Action for Childhood Arrivals program.
The states — which also include Arkansas, Louisiana, Nebraska, South Carolina and West Virginia — argue that the Obama administration exceeded its constitutional authority in 2012 when the Department of Homeland Security created DACA. The program, available to illegal immigrants who came to the United States as children by June 2007 and meet certain other criteria, offers protection from deportation and two-year, renewable work permits.
Nearly 700,000 people have DACA status. As of September, when President Donald Trump announced he would rescind the executive action that created DACA, Texas had about 113,000 of those beneficiaries. But U.S Citizenship and Immigration Services statistics indicate Alabama had just 3,900 — about 6 tenths of 1 percent of the total.
Despite those numbers, Alabama Attorney General Steve Marshall argues larger constitutional principles are worth fighting for.
“It’s the broader position of making sure the framework of the Constitution … in fact remains intact,” he said in an interview.
The states filed their lawsuit in the federal court in Brownsville and on Wednesday asked U.S. District Judge Andrew Hanen to put DACA on ice while the litigation proceeds. Hanen is the same judge who blocked the Obama administration from implementing a wider amnesty program, Deferred Acton for the Parents of Americans.
“This really is a continuation of an effort that began in 2014,” Marshall said, referring to the DAPA suit, to which Alabama also was a party.
Since becoming attorney general in February last year, Marshall has continued the practice of his predecessor, Luther Strange, of weighing in on national legal disputes. Marshall was part of a 10-state coalition that last year threatened to sue the Trump administration over DACA.
That threat is part of the reason why Trump moved against DACA. He delayed carrying out the order for six months to give Congress time to codify DACA in law. But lawmakers and the administration failed to reach consensus on a proposal to grant full amnesty to illegal immigrants who grew up in the United States in exchange for border security measures and reductions in legal immigration that the president demanded.
As the March deadline came, however, federal judges across the country issued orders keeping DACA in place. Federal judges in San Francisco, Brooklyn and Washington separately have ruled that the Trump administration failed to follow proper procedure and relied on an erroneous conclusion about the legality of the program.
The latest ruling, by Senior U.S. District Judge Jon Bates, not only ordered the administration to keep DACA in place for existing beneficiaries but to begin accepting new applications, as well.
“What we’ve seen here in the last little while is activist judges in California, New York and Washington attacking the recision, which we think was correct,” he said.
Marshall said he hopes the suit filed in Texas this week proceeds on a fast track. Hanen is familiar with the issue, and Marshall argued that the legal arguments related to DACA are identical to those involving DAPA.
“Our position is that it does not require extensive fact finding,” he said. “DAPA and DACA are almost analogous in terms of how they arose.”
Legal experts have pointed to a possible hurdle facing Alabama and the other states — the three orders already in place protecting DACA.
But Marshall said the suit in Texas stakes out different legal territory. Those court orders dealt with actions of the Trump administration. Marshall said the latest litigation challenges the legality of the DACA program, itself.
“It goes even further back in time,” he said.
Given the conflicting court rulings already on the books — a federal judge in Maryland upheld the right of the Trump administration to end DACA — Marshall said he expects the case ultimately to be decided by the Supreme Court.
If Alabama, Texas and the other states prevail, it would not stop Congress from granting amnesty if lawmakers chose. Marshall declined to say whether Congress should do that.
“I’m not here to tell Congress what to do. … One of the things that this case reaffirms is that it is the role of Congress to exercise legislative authority, and it is the role of the executive branch to enforce those laws,” he said.