Texas Court Strikes Down DACA as Unconstitutional
September 2023: The history of DACA was shot down as an unconstitutional law in a federal court’s hail of legal bullets in the Southern District of Texas in Houston. What got blown away was a new version of a Dreamers federal policy that shields hundreds of thousands of immigrants brought to the U.S. – as children – from deportation.
The Legal Journey of DACA: Back to Supreme Court?
Texas and eight other states successfully sued to end the Deferred Action for Childhood Arrivals (DACA) program, and U.S. District Judge Andrew S. Hanen agreed with the plaintiffs. It was widely anticipated that an appeal of the judge’s ruling would be filed with the U.S. Supreme Court, bringing the final destiny of the program back to the court for a third time.
“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote in the 40-page ruling.
“The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation.”
Dreamers in Limbo: What About Current Participants
Although Hanen stopped the government from accepting new applicants, the program was not changed for active participants or those granted appeals. Hanen has stated that his order does not necessitate any action on the part of the federal government in regard to DACA recipients.
The states claim the Obama administration overstepped its bounds by establishing the program in 2012 without first getting approval from Congress.
In February 2015, Hanen stopped an Obama executive order taking effect. He said “The genie would be impossible to put back into the bottle,” agreeing with plaintiffs’ argument that legalizing the presence of millions of people is a “virtually irreversible” action.
Since the program did not undergo the mandatory public notice and comment processes mandated by the federal Administrative Procedures Act, Hanen ruled in 2021 that the scheme was unlawful.
As part of a formal rulemaking process, the Biden administration solicited public feedback before implementing a revised DACA program in October 2022.
The modified version of DACA was deemed illegal by Hanen, who was nominated by then-President George W. Bush in 2002. He had previously stated that DACA was unlawful and that it was Congress’s responsibility to pass legislation protecting DACA recipients, sometimes referred to as “Dreamers.”
State Governments Assert Financial Strain as Justification for Lawsuit
Since the states had suffered losses due to the program, Hanen had already concluded that they had “standing” to sue.
When illegal immigrants are allowed to stay in the nation, states say they have to spend hundreds of millions of dollars on their care. State governments in Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and Mississippi filed the lawsuit.
The White House in a statement late Wednesday said it was “deeply disappointed” in the ruling and vowed to continue defending the policy, according to The Hill.
“As we have long maintained, we disagree with the District Court’s conclusion that DACA is unlawful, and will continue to defend this critical policy from legal challenges,” press secretary Karine Jean-Pierre said in a statement. “While we do so, consistent with the court’s order, DHS will continue to process renewals for current DACA recipients and DHS may continue to accept DACA applications.”
Advocates Against States
The federal government, the Mexican American Legal Defense and Educational Fund, and the state of New Jersey have unified in defense of the Deferred Action for Childhood Arrivals program, and they have all stated that the states have failed to prove that any of the costs they claim to have incurred can be directly attributed to DACA recipients. They also claimed the Department of Homeland Security has the legal ability to establish immigration enforcement rules since Congress has delegated that authority to the agency.
President and general counsel of MALDEF Thomas A. Saenz said in a statement after the ruling, “We must all remain mindful that this lengthy lawsuit, and the precarious state of uncertainty in which it places DACA recipients, is largely the result of Congress indolently refusing to enact legislation – which has the overwhelming bipartisan support of the nation’s voters” to preserve the DACA recipients as permanent members and contributors in U.S. society.
The National Immigration Law Center, the New York Immigration Coalition, and the Coalition for Humane Immigrant Rights all issued statements Wednesday condemning Hanen’s decision.
Democratic representatives such as Illinois’ Chuy Garcia, California’s Adam Schiff, Washington’s Pramila Jayapal, Nevada’s Steven Horsford, and Florida’s Frederica Wilson were quick to condemn Hanen’s decision on social media.
“This is an awful choice, but it’s not unexpected. DACA recipients cannot remain in an undefined legal status.” Garcia said that Congress must create a legal means to become a citizen. “Despite this judgment, DACA remains in effect, and DACA recipients can still renew their protections.”
“Home is here,” the Mexican-American politician stressed.
Individuals already included in the DACA program under the Obama administration, Hanen maintained the status quo despite his earlier declaration that the program was illegal. But his ruling said no one could apply while appeals were being processed.
U.S. Citizenship and Immigration Services reported 578,680 Dreamers as of the end of March. There have been numerous legal challenges to the program over the years. For example, in 2016, the Supreme Court could not reach a unanimous decision on whether to expand DACA or to create a separate program for the parents of DACA recipients. The Supreme Court ruled 5-4 in 2020 that DACA should continue to exist since it was improperly terminated by the Trump administration.
While upholding Hanen’s earlier order finding DACA illegal, the 5th U.S. Circuit Court of Appeals in New Orleans referred the case back to him to consider revisions made to the program by the Biden administration.
Role of Congress Securing Future of DACA, Dreamers
Can the U.S. Supreme Court or Congress save DACA?
There are limited ways for the Biden administration to use executive power to safeguard Dreamers. First, federal courts have repeatedly blocked certain immigration-related government activities, including an immigration enforcement “pause,” new immigration enforcement priorities, which plans to lift the Title 42 health policy at the border, and a phase-out of the Migration Protection Protocols (MPP) (the Supreme Court ultimately allowed the latter to move forward).
Given this history and the 5th Circuit decision demonstrating skepticism towards providing relief to classes of DACA recipients, federal courts appear likely to disfavor subsequent executive actions that seek to carry out DACA-type protections.
Congress must act if it wants to provide certainty for DACA recipients and other Dreamers and safeguard their protections from future court challenges. Passing legislation to provide a permanent solution, would in essence provide a pathway to citizenship for Dreamers.
The downside to this strategy is that Joe Biden and other advocates have previously urged Congress to provide permanent protections for “dreamers.” Those attempts to enact the DREAM Act in Congress to safeguard DACA recipients have failed as well.
Biden’s administration and the hundreds of thousands of immigrant Dreamers may keep their dreams alive if the U.S. Supreme Court saves them from dying a slow death.
Legal Affairs Reporter C.J. Walker can be reached at [email protected]
