Will Sessions’s DOJ Defend DACA? He Previously Doubted Its Constitutionality

REUTERS/Jonathan Ernst

Alex Pfeiffer White House Correspondent
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President Donald Trump has so far reneged on his campaign promise to “immediately terminate” former President Barack Obama’s amnesty for illegal immigrants who arrived as minors.

However, a looming lawsuit from ten Republican state attorneys general might hasten the end of the program. Texas state attorney general Ken Paxton wrote in letter to Sessions that the federal government will face a challenge on the legality of Deferred Action for Childhood Arrivals if by September 5 the Trump administration continues to renew or issue new DACA permits. (RELATED: Nearly 100,000 ‘Dreamers’ Granted Amnesty In Trump’s Opening Months)

State attorneys general previously succeeded in their lawsuit against DAPA, which was Obama’s amnesty for illegal immigrant parents of American citizens. If filed, the lawsuit would come before the same Texas federal judge that halted the enforcement of DAPA.

Secretary of Homeland Security John Kelly met with members of the Congressional Hispanic Caucus Wednesday and warned them that DACA might not survive a legal challenge.

DHS spokesman David Lapan told The Washington Post, “This is what he’s being told by different attorneys, that if it goes to court it might not survive.”

A Justice Department spokesman declined to comment Sunday about whether the DOJ will defend DACA in court. The Obama administration decided in February 2013 that it would stop defending the Defense of Marriage Act, which prohibited the federal recognition of same-sex marriage.

This could be a decision that Sessions’s DOJ very well takes. He testified before the Senate Judiciary Committee in January that DACA is “very questionable, in my opinion, constitutionally.”

The immigration hawk went on to say that it “would would certainly be constitutional, I believe, to end that order.” President Trump’s pick to lead the Office of Legal Counsel, Steven Engel, would also likely be against defending DACA as he represented Republican senators in connection with the lawsuit against DAPA. Engel has yet to be confirmed by the Senate.

President Trump was asked about Kelly’s remarks that the program might die in court and he replied that the move to end DACA “is a decision that I make and it’s a decision that’s very, very hard to make.”

Despite asserting his authority, Trump remarked, “There are two sides of a story. It’s always tough.”

Lawyers, however, do contend that it would be improper for Trump to ignore the DOJ’s recommendation about defending DACA.

“When you take that fight to the court, it kind of takes it away from him [Trump], and the Department of Justice is in charge of defending DACA,” Denise McGettrick, a Texas attorney, told Voice of America.

Indeed, Democratic Illinois Rep. Luis Gutierrez told the Post. “If you’re going to count on Jeff Sessions to save DACA, then DACA is ended.”