There should be no surprise that a Texas federal district court judge, Andrew Hanen, has ruled against the validity of DACA (on July 19). No one has ever accused him of being overly sympathetic to immigrant rights, But what is surprising is that there appears to have been wide acceptance of his decision, even among immigration advocates. The overwhelming consensus of opinion among both immigration advocates and the media in general appears to be that it is now "Up to Congress" to act in order to save this critically important program.

There is only one problem with this line of reasoning, Congress is not going to act to save this program. There is no way that a DACA bill, which would benefit mainly Latinos and other immigrants of color, would ever be able to survive a Senate filibuster by the Republicans, who have been the party of white supremacy ever since the time of President Richard Nixon, and have now become the party of full -blown white nationalism under Donald Trump.

Nor is it realistic to "Get rid of the filibuster", as President Biden is being urged to support. If the Republicans take back their Senate and House majorities, which could easily happen in 2022, and if a Republican president is elected in 2024, which a host of state voter suppression laws are intended to accomplish, there would be no defense against a slew of white supremacist, proto-fascist laws being enacted that could effectively put an end to our democracy. Keeping the Senate filibuster in place would be the only way that democracy could survive.

The only conclusion is that Judge Hanen's DACA decision to end DACA for all practical purposes must be appealed. And what would be the basis for such an appeal? It would be US and international laws based on Human Rights, especially the right to protection against discrimination based on race or national origin.

In his 77-page decision striking down DACA, Judge Hanen went into great detail to reach the conclusion that Congress had not only failed to authorize the DACA program, but that the program went against specific Congressional intent. He also went into great detail over the ways that the plaintiff states which were seeking to strike down DACA would purportedly suffer harm if the program was allowed to continue.

The fact that a Republican president, Donald Trump, and his chief henchman, Stephen Miller, had tried to close down most, if not nearly all, of America's legal system during Trump's term through executive action without the slightest inkling of Congressional authority, in direct violation of the historic immigration reform act of 1965 and subsequent legislation opening up America to nonwhite immigration, did not seem to bother Judge Hanen in the least, because he made no mention of this.

Nor did Judge Hanen mention the real purpose of the lawsuit against DACA, which was to re-establish a white supremacist immigration regime in America by leaving a large group of nonwhite immigrant without any rights at all in this country, and with what was obviously intended by Judge Hanen to be only temporary protection against deportation.

When Donald Trump attempted to terminate DACA administratively in 2017, an attempt which the Supreme Court rejected on narrow APA grounds rather than reaching the substance of the DACA issue, one commentator, Matthew J. Eible of Duke University, wrote as follows in his article, with reference to prohibitions against racial or national origin discrimination in international human rights law, entitled:

Using a Human Rights Law Approach to Allege Human Rights Violations in the Trump Administration's Termination of the DACA Immigration Program:

(See- Salzburg Global Seminar - www.salzburgglobal.org - or else Google by title.)

Indeed, credible arguments may be advanced that race, national origin, and immigration status all played a role in the Trump administration's termination of the DACA program in a way that was neither reasonable nor objective [as required by International human Rights Law]."

How can there be the slightest possible doubt that anti-immigrant racial discrimination, in violation of the Equal Protection clause of the 14th Amendment to the US Constitution, as well as international Human Rights Law, was the real motive for bringing the lawsuit against DACA?

The same states (by and large) that brought the lawsuit against DACA are also now trying to pass laws preventing US citizens of color from voting, all in support of Trump's racially motivated "Stolen Election" Big Lie.


To be continued in Part 2 of this 2-part series.

Roger Algase
Attorney at Law
Harvard College A.B.
Harvard Law School LL.B.