U.S. District Judge Andrew S. Hanen heard arguments on Tuesday in a Texas lawsuit that questions the legality of the Deferred Action for Childhood Arrivals (DACA) program. Both sides in the lawsuit asked for a hearing before the judge in Houston instead of holding a trial.

Texas joined eight other states to argue that President Obama went around Congress’ authority on immigration laws when he created DACA in 2012. We remember that even Obama himself admitted he had no constitutional authority to put DACA into place but he went ahead and did it anyway. After all, 2012 was the year he was running for re-election and there were Hispanic votes to pander for, you know. Obama presented his case for DACA because the children brought here by parents breaking the immigration laws of the United States were innocents in the act. Their protections are limited and must be renewed every two years.

It should be noted that Judge Hanen is a George W. Bush appointee who blocked President Barack Obama’s effort to expand DACA in 2015. At the time he cited that one legal flaw was it did not go through the publication and comment process for major new regulations. Obama just acted alone with a sweep of his pen.

The Texas Attorney General’s Office is taking the lead in this case. DACA recipients are represented by the Mexican American Legal Defense and Educational Fund, and the New Jersey Attorney General’s Office. The attorneys for the DACA recipients say that Texas and the eight other states – Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina, and West Virginia – lack standing to sue. “This program was unlawful at its inception and it continues to be unlawful today,” Todd Disher, a lawyer with the Texas Attorney General’s Office, told Judge Hanen. Disher went on to press the judge to order the policy nullified. “There is no additional reason now to delay,” Disher said. “There is simply no reason to leave an unlawful program in place.” Disher’s request of the judge came with a twist. He said there is no need to immediately dismantle DACA.

Disher said one option would be to give the program two years to wind down — a similar approach to what the Trump administration sought to do before the Supreme Court said officials carrying out Trump’s directive didn’t adequately account for the interests of the roughly 600,000 people with DACA status, as well as their families, employers and schools.

Any person who is thinking about the problems of immigration policy in the United States cannot take seriously any proposal that calls for immediate actions to deal with the messes we find ourselves in. Even Status Quo Joe had to admit that he will not be able to magically reverse all of the Trump administration’s immigration policies “on day one” as he claimed on the campaign trail. Ironically, he told the press that yesterday, the same day the lawyers were in federal court in Houston arguing about DACA.

The press is painting this lawsuit as a red state versus blue state battle. The lawyers for the DACA recipients want a pause until the Biden administration is in place. They know that Biden intends to implement open border policies.

“Given … the ongoing federal transition we think this court can expect further changes to that framework soon,” New Jersey State Solicitor Jeremy Feigenbaum said during a three-hour-plus court hearing in Houston. “Policies can be a bit of a moving target during [a] transition.”

Feigenbaum said the new administration couldn’t turn back time but could clarify “confusion” about the program in the wake of a Supreme Court ruling earlier this year that rejected President Donald Trump’s attempt in 2017 to initiate a phase-out of DACA.

Attorneys for the DACA recipients think a better solution if the program is dismantled, would be to give it to the Department of Homeland Security and let them put together a new or different program. A Justice Department lawyer asked for an orderly shutdown of DACA.

Justice Department lawyer John Coghlan didn’t enter the fray much on Tuesday, but urged the judge to allow for an orderly shutdown of DACA if it is ruled illegal. “DHS will need flexibility and time to wind the program down if it is determined to be unlawful,” he said.

While Hanen sounded doubtful about the legality of DACA, he also recognized that determining the future of the program is more complicated than the situation he faced in 2015 when he halted the related Deferred Action for Parents of Americans program before it kicked in.

“This is a completely different situation,” the judge said.

This lawsuit is from a 2018 lawsuit brought against the federal government, a separate lawsuit from the one the Supreme Court tossed out in June which was filed by the Trump administration over DACA’s legality. The red states argue that they are stuck with the financial burdens that illegal immigration bring. Texas has the largest number of DACA recipients after California. An interesting point made by the DACA recipients attorneys is that even though the program may be ruled illegal, the federal government won’t be able to remove all of those here illegally. They said the quiet part out loud, which I think shows how emboldened they feel by the incoming administration.

The defendants’ attorneys on Tuesday argued that the states failed to show DACA caused injury, especially because costs associated with services to immigrants can’t always be attributed to the program, they said. Ending DACA, they said, doesn’t mean that all immigrants will leave or be deported.

“We know from history that the federal government does not have the resources to remove all of individuals, so they’re not going to,” said Douglas Hallward-Driemeier, an attorney working alongside MALDEF.

The judge has not issued a ruling as I write this Wednesday morning.