Last week, the Fifth Circuit heard oral arguments in the case Texas v. United States, challenging the lawfulness of the DACA program. Texas, along with eight other states, wants to end DACA, which provides temporary legal status to immigrants brought to the United States as children.
In 2021, a federal judge in Texas ruled that DACA, which was created through an executive order from President Obama in 2012, was “unlawful.” Judge Andrew Hanen’s ruling meant that the Biden administration could no longer process new applicants into DACA, though it does allow current holders to renew their two-year work visas.
Lawyers representing Texas and the other states hostile to DACA used their time in front of the Fifth Circuit to declare that the program has been a massive fiscal liability. The Mexican American Legal Defense and Educational Fund argued with the state of New Jersey on behalf of several DACA recipients (also known as Dreamers) in front of the three-judge panel in New Orleans at the Fifth Circuit and countered that argument.
Thomas A. Saenz, the president and general counsel of MALDEF said after the hearing that the case against DACA should not even continue. “Texas has never shown a concrete injury caused by DACA, and therefore lacks standing to pursue what has been from the beginning a late-filed, politically motivated, and ill-conceived lawsuit,” he said in a statement.
Ken Paxton, the indicted Attorney General of Texas, took to social media after oral arguments to claim that MALDEF was “litigating for lawlessness.” Paxton also appeared confident in a court victory.
Regardless of how the Fifth Circuit rules, an appeal to the Supreme Court seems likely. DACA narrowly survived at the Supreme Court in 2020 in a 5-4 vote that ruled that the Trump administration’s efforts to end the program were illegal. However, that vote took place when Ruth Bader Ginsburg was still a Justice. The Fifth Circuit could rule anytime in the next few days or even months.