Dec. 22 (UPI) -- A federal judge will hear arguments Tuesday about the legality of the Deferred Action for Childhood Arrivals program in what's viewed as a serious challenge to the Obama-era law that protects nearly a million undocumented immigrants from deportation.
Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas will hear arguments in a case led by the state of Texas weeks before President-elect Joe Biden, who has pledged to defend the program, is set to take office.
The program protects more than 650,000 undocumented immigrants who were brought to the United States as children, known as Dreamers, as well as another 300,000 potential new applicants.
The suit brought by Texas Attorney General Ken Paxton and attorneys general from other Republican states challenges whether President Barack Obama had the authority to create DACA in 2012 and whether his administration properly implemented it.
Paxton, who has been under federal indictment since 2015 on felony securities fraud charges, recently failed in a bid to ask the Supreme Court to overturn the results of the presidential election that Trump lost. The suit was widely denounced as having a lack of legal standing and for being replete with various clerical errors. The high court unanimously rejected the effort.
"If the nation truly wants to have a DACA program, it is up to Congress to say so," the lawsuit states. "Congress has not yet said so, so DACA remains just as unlawful today as it was when it was created through the 2012 DACA memorandum."
The attorneys general who are party to the suit are not asking Hanen to immediately terminate the DACA program, but rather they want him to either bar new applicants or delay its termination for two years.
The suit is considered the most significant threat yet to the program, particularly as Hanen in the past has said DACA is probably illegal.
In 2015, the judge blocked Obama's bid to expand DACA eligibility and create a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents -- and in 2018 he ruled in a 117-page opinion that opponents had "clearly shown" they were likely to prevail in their argument that DACA is unlawful and should be blocked.
Nina Perales, an attorney for the Mexican American Legal Defense representing DACA recipients, counters that states do not have legal standing to challenge DACA and have so far failed to demonstrate that they are harmed by the program.
"This case is important because Texas and several other states want a judge to declare that DACA is unlawful and to block DACA into the next presidential administration," she told CBS News.
DACA has so far survived multiple legal challenges in the past few years, including one earlier this month in which U.S. District Judge Nicholas G. Garaufis ordered the Department of Homeland Security to explicitly state that it would again process applications for potential first-time DACA enrollees, after a memo from DHS Secretary Chad Wolf blocking applications was declared invalid.
Part of the issue was a determination that Wolf was not legally serving in his role as Homeland Security secretary when he wrote the memo. The department said days later that it had reinstated DACA protections.
A ruling against DACA on Tuesday could be appealed in the 5th Circuit Court or could lead to Congress or the Biden administration to create similar legislation that may better withstand legal challenges.
"In a different way, it could bring about what needs to happen anyway," said Leon Rodriguez, former director of U.S. Citizenship and Immigration Services in the Obama administration, "which is that Congress and the executive branch in partnership need to take responsibility for the issue of Dreamers."