For years, I have written that I considered President Barack Obama’s action to create Deferred Action for Childhood Arrivals (DACA) to be unlawful. The move was part of an open effort to circumvent Congress when it failed to yield to the demands of President Obama and dispensed with obligations under the Administrative Procedure Act (APA). Now the United States Court of Appeals for the Fifth Circuit has upheld a lower court in ruling against DACA.
Writing for a unanimous three-judge panel of the Fifth Circuit (with U.S. Circuit Judges James Ho and Kurt Engelhardt), Chief Judge Priscilla Richman found that President Obama did indeed circumvent Congress and evaded the limits imposed in the Immigration and Nationality Act (INA) when it enacted DACA in 2012. The court declared:
“Under the first factor, DACA’s deficiencies are severe. The district court’s excellent opinion correctly identified fundamental substantive defects in the program. The DACA Memorandum contradicts significant portions of the INA. There is no possibility that DHS could obviate these conflicts on remand.”
The court, however, did not change the status of the roughly 600,000 people from 150 countries enrolled under DACA. It sent the case back to the trial court for further proceedings.
The Biden Administration fought to block any judicial review by challenging the standing of Texas to bring the action. However, it did little to refute the claims of injury raised by the state, including an expert who estimated that DACA recipients overall impose a cost of more than $250,000,000 on Texas per year and another $533,000,000 annually in costs to local Texas communities.
In addition, the court noted that:
“Texas contends that the rescission of DACA would cause some recipients to leave, thereby reducing the financial burdens on the State. It cites a survey of over three thousand DACA recipients in which twenty-two percent of respondents said they were likely or very likely to leave the country if DACA ended.130 The Government presents evidence that many recipients would remain without DACA, but that does not controvert Texas’s showing that some would leave.”
The Fifth Circuit also rejected the common claim that this is nothing more than the exercise of prosecutorial discretion not to prosecute cases:
“As our court held in DAPA, “‘[a]lthough prosecutorial discretion is broad, it is not “unfettered.”’ Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.”
Even if the INA were ambiguous, DACA would fail at step two because it is an unreasonable interpretation of the INA. Like DAPA, DACA “undoubtedly implicates ‘question[s] of deep “economic and political significance” that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.’”
There is no “clear congressional authorization” for the power that DHS claims.”
U.S. District Judge Andrew Hanen will now get the case back. He previously decided that the Department of Homeland Security had implemented DACA in violation of the APA.
In response, the Biden administration has developed a new DACA rule and published it on the Federal Register to satisfy the public notice-and-comment process. The new rule is scheduled to become active on Oct. 31.
The case could ultimately find its way to the Supreme Court but such a move could only magnify the bad precedent already created in the case for the Administration.
Here is the opinion: Texas v. United States