Written by David Leopold, America’s Voice Legal Advisor, past president, American Immigration Lawyers Association (AILA) and Immigration Group Leader, Ulmer & Berne LLP
For years, ending the Deferred Action for Child Arrivals (DACA) program has been a top priority for Ken Paxton, the corrupt Attorney General of Texas. Of course, for the past few weeks, Paxton has been the focus of national attention as the Republican controlled Texas State Senate tries him in an impeachment trial based on corruption charges brought by his own staffers.
But, when he’s not defending himself in the Texas Senate or as a criminal defendant in Texas state court, Paxton’s use of the federal judiciary to push his nativist political agenda continues unabated.
As with Paxton’s other anti-immigrant lawsuits, he has relied on the ability to federal judge shop in Texas for jurists he perceives to be friendly to his cause; a practice that even caught the attention of U.S. Supreme Court Justice Elena Kagan, who observed during oral argument in United States v. Texas,
“You can pick your trial court judge. You know, you play by the rules, that’s fine, but you pick your trial court judge. One judge stops a federal immigration policy in its tracks because you have a kind of, sort of speculative argument that your budget is going to be affected. I mean, we’re just going to be in a –in a situation where every administration is confronted by suits by states that can, you know, bring a policy to a dead halt, to a dead stop, by just showing a dollar’s worth of costs?”
Over the past few years, one of Paxton’s favorite judges has been Andrew Hanen who, in 2015, blocked the Obama administration’s DAPA program which was aimed at temporarily protecting the undocumented parents of U.S. citizens.
In 2016, as another Paxton anti-immigrant lawsuit was heading to the Supreme Court, America’s Voice wrote a post linking to a law review article by Law Professor Anil Kalhan, “Judicial Truthiness”: Who Said It, Donald Trump Or Judge Hanen?, which also pointed out Hanen’s aggressively anti-immigrant political rhetoric.
Once Trump was elected, Paxton began an aggressive campaign to end DACA, pressuring then Attorney General Jefferson Beauregard Sessions III, with an assist from Stephen Miller’s cronies. Miller, as many will recall, was the driving force behind Trump’s anti-immigrant policies. In September of 2017, Sessions announced an end to DACA, but that was blocked by federal judges who, much to Paxton’s disappointment, followed the law, not their own political agendas.
But Paxton remained undaunted. After four years of Donald Trump his Texas federal judge shopping offers new Trump appointees. Paxton has been the main trafficker of what we call “the anti-immigrant judicial pipeline,” which runs from ultra-conservative federal district court judges to the ultra-right wing Fifth Circuit, and directly up to the ultra-conservative dominated Supreme Court.
Paxton and his ilk don’t want solutions. They want to inflict pain on immigrants, including the 600,000 DACA recipients around the country. They are opposed to immigrants having legal status in this country. Never mind that these young immigrants have benefited the American economy and brought value to our nation. Paxton and the Republicans have cynically relied on Congress’s inability to act to further their goal of using the courts to destroy DACA and enact their nativist policy agenda.
Not to be overlooked, when Democrats controlled the United States House of Representatives, they passed the Dream and Promise Act in both 2019 and 2021, legislation which would have given young aspiring Americans much needed legal security. Unfortunately, the Senate, paralyzed by its own archaic procedural rules, did not hold votes on that legislation leaving DACA recipients and other young undocumented immigrants without a long-term solution. If the Republicans who profess to support Dreamers – for example, those who voted for the Dream and Promise Act in recent years in the House or those Senators who supported comprehensive legislation – worked with Democrats in Congress, they could pass a bill that President Biden would sign, leaving the Attorney General and Judges in Texas far less power to dictate national immigration policy.
Hanen’s most recent decision declaring DACA unlawful is hardly a surprise. His courtroom has been a favorite destination for Paxton in his brazen effort to politicize the federal courts. Paxton can hardly be disappointed that Hanen’s order didn’t actually end DACA. He and his political allies are no doubt confident the Fifth Circuit will kill the program.
In all likelihood DACA will once again appear before the Supreme Court. Chief Justice John Roberts will be faced with another purely political question. The Court has shown some ability to shut that down, as they recently did in Texas v. United States when they overruled another Texas GOP appointed Judge, Drew Tipton, on standing grounds. Hanen appears to have overlooked that ruling this week, which the Supreme Court Justices should notice when and if this case gets to them.
But Paxton and the GOP are counting on the judicial pipeline to deliver for them – again.