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Federal judge again rules DACA is illegal in case likely to be decided by Supreme Court

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In his opinion, Hanen said the Biden administration’s effort amounted to “instituting its own solution, regardless of the dictates of Congress,” according to the Times. Hanen added: “The executive branch cannot usurp the power bestowed on Congress by the Constitution—even to fill a void.”

The Biden administration is expected to appeal Hanen’s decision to the U.S. Court of Appeals for the Fifth Circuit, which is considered very conservative. It’s likely that the Supreme Court will ultimately decide the fate of the program.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, which represented DACA recipients, told the Times:  “We look forward to continuing to defend the lawful and much-needed DACA program on review in higher courts.”

In 2021, Judge Hanen sided with Republican-led states that had sued and ruled that DACA was illegal, the Times reported. He allowed current DACA recipients to keep renewing their enrollment every two years. But his decision left tens of thousands of younger undocumented immigrants unable to enroll in the program. The Associated Press reported:

In 2021, Hanen had declared the program illegal, ruling it had not been subject to public notice and comment periods required under the federal Administrative Procedures Act.

The Biden administration tried to satisfy Hanen’s concerns with a new version of DACA that took effect in October 2022 and was subject to public comments as part of a formal rule-making process.

But Hanen, who was appointed by then-President George W. Bush in 2002, ruled the updated version of DACA was still illegal. He had previously said DACA was unconstitutional and it would be up to Congress to enact legislation shielding people under the program, often known as “Dreamers.”

Last year, the Biden-Harris administration celebrated the 10th anniversary of the DACA program which has allowed hundreds of thousands of noncitizens who were brought to the U.S. as children  and lack lawful status to live, study, and work in the country.

A White House statement said that 825,000 noncitizens have been granted DACA status since 2012, including about 343,000 recipients who are employed in industries deemed essential by the Department of Homeland Security.

About 580,000 people make up the current DACA population, according to United States Citizenship and Immigration Services. The White House statement concluded:

“DACA recipients enrich our nation with their deep community ties, exceptional talents, and work ethic. … The Biden Administration has worked vigorously to defend DACA in court and is working expeditiously on a rule to codify and preserve the policy.  Ultimately, however, only Congress can provide the permanent relief that Dreamers need and that our country deserves.”

Despite polls showing a strong majority of Americans support a permanent legal solution for Dreamers, Congress has failed to pass such legislation.

And such efforts have run into a roadblock put up by Republicans who want to focus on “illegal immigration” and border security. In 2017, President Donald Trump fulfilled a campaign promise by ordering an end to the DACA program, calling it an “amnesty-first approach.”

The Times wrote that the Supreme Court reinstated it after finding in 2020 that the Trump administration had not adequately justified eliminating DACA. But the high court did not rule on the legality of the program. 

In 2018, Texas and other Republican-led states sued in federal court to have DACA banned, arguing that the program was unlawful and that it imposed hundreds of millions of dollars in health care, education, and other costs on them. The other states involved in the lawsuit are Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and Mississippi.

The Associated Press reported:

Those defending the program — the federal government, the Mexican American Legal Defense and Educational Fund and the state of New Jersey — had argued the states failed to present evidence that any of the costs they allege they have incurred have been tied to DACA recipients. They also argued Congress has given the Department of Homeland Security the legal authority to set immigration enforcement policies.

RELATED STORY: Some Wisconsin conservatives have changed their mind on letting undocumented immigrants drive


September 2023