Once again, a federal district court has ruled that the Deferred Action for Childhood Arrivals administrative amnesty program—originally implemented by President Barack Obama, terminated by President Donald Trump, and reinstated by President Joe Biden—is illegal.
So, how many times do the courts have to strike DACA down before the executive branch finally terminates a program it never had the authority to grant in the first place?
No one knows.
And will the Biden administration actually abide by this most recent court order? No way.
This unlawful assertion of executive power started when Janet Napolitano, then-secretary of the Department of Homeland Security, issued a three-page memorandum in 2012 deferring the removal of illegal aliens who arrived in the U.S. before the age of 16 who had been in the country for at least five years prior to the date of the memo and were not above the age of 30.
They were granted access to Social Security and Medicare benefits—despite the fact that illegal aliens are barred from those government programs by federal law. By granting them access to those programs, that made them eligible for certain state benefit programs that depend on whether someone is “lawfully present” in the U.S., which was the label given to them by DHS.
Additionally, the aliens were given work permits, also in violation of federal immigration law, which specifically lists the legally admitted aliens who are eligible for work permits. The aliens covered by DACA are not among those.
The deferral was for a renewable, two-year period, and there were approximately 1.9 million aliens eligible for the program. By 2018, 814,000 illegal aliens had applied for and received DACA benefits and immunity from deportation.
The Obama administration subsequently created a second amnesty program, the Deferred Action for Parents of Americans and Lawful Permanent Residents, and attempted to expand DACA.
Under both of those programs, half of the then-estimated 11.3 million illegal aliens in the country would have been granted amnesty, according to federal Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, who issued the most recent decision in the matter on Sept. 13.
The procedural history of these programs—both inside the executive branch and in the litigation filed against, and in support of, these programs—is long and complicated, involving numerous appeals and remands.
Twenty-six states initially sued the Obama administration to stop the DAPA program and the expansion of DACA. Hanen issued a preliminary injunction against the programs in 2015, which the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court upheld, and the case was remanded back to Hanen.
But when Trump was elected, DHS issued memos rescinding and canceling both programs and the parties agreed to dismiss the lawsuit. But liberal groups and organizations, including the regents of the University of California, filed several lawsuits to stop the termination of the amnesty programs.
When lower courts ruled that the Trump administration couldn’t end the programs, those decisions were appealed to the Supreme Court in 2020, which didn’t rule on the merits, but instead held that the rescissions didn’t meet the procedural requirements under the Administrative Procedure Act for a change in policy.
Those lower court decisions preventing the termination of DACA were particularly bizarre, holding that a subsequent president couldn’t reverse an executive action taken by a prior president through executive action.
Without going into a lengthy recitation of the subsequent action of the Trump DHS to better explain the rescission of the programs to meet the requirements of the APA, and the additional litigation filed against that, as well as the change in policy once again when the Biden administration came in, suffice it to say that the legality of the DACA program ended up back in the lap of Hanen.
The judge’s review was of the new “final rule” of the Biden DHS reimplementing the DACA program as of Oct. 31, 2022, which was being contested by Texas, Alabama, Kansas, Louisiana, Mississippppi, Nebraska, South Carolina, and West Virginia.
Keep in mind that the 5th U.S. Circuit Court of Appeals had previously ruled that the original 2012 DACA program didn’t comply with the procedural requirements of the APA and that it also violated specific provisions of the Immigration and Nationality Act because Obama had no authority to grant government benefits to illegal aliens.
But the 5th Circuit remanded the case back down to Hanen to determine whether the new final rule, which expanded DACA even further by making DACA beneficiaries eligible for Obamacare, somehow legitimized the entire program.
Hanen’s answer was a resounding “no.”
DHS acknowledged that the final rule did not “vary from the substantive aspects of the 2012 DACA memorandum.” In other words, said Hanen, “there are no material differences” between the 2012 and 2022 rules supposedly justifying the program. Thus, DHS “did nothing to change or resolve the substantive problems found by this Court or the Fifth Circuit.”
In fact, the DHS “candidly” admitted “that the Final Rule suffers from the same problems as the 2012 DACA Memorandum and that it is contrary to the 5th Circuit’s opinion.”
The actions of the Biden administration in this context are truly inexplicable.
It did nothing to try to “fix” the problems with DACA that the 5th Circuit said made the original program unlawful, and yet it went to court somehow expecting that judges would overlook that and suddenly conclude that granting amnesty and government benefits to illegal aliens under the new final rule in blatant violation of federal immigration laws was legal.
Set aside the fact that DACA, as originally envisioned, is not “fixable” in the first place, no matter how much fancy lawyering went into it.
But the point is this: The Biden administration didn’t even try to pretend it was fixing the defects.
Hanen must have had quite a feeling of déjà vu in his handling of this latest iteration of the 10-year fight over the illegal actions of the executive branch.
The Biden administration did try to argue that if Hanen found any parts of the DACA program to be unlawful, it should just sever those parts and allow the rest of the program to stay in place.
Hanen also refused to do that, saying that if he did, “it would completely gut the program.”
Hanen expressed his sympathy for “the predicament of DACA recipients and their families” who have relied on this program for a decade. However, as he correctly pointed out, the “solution for these deficiencies lies with the legislature, not the executive or judicial branches.”
The judge added:
Congress, for any number of reasons, has decided not to pass DACA-like legislation. Defendant-Intervenors argue that this program is supported by the vast majority of Americans and that failure to enact it is inexcusable; but Congress’s alleged failure to pass, or, stated differently, its decision not to enact legislation, does not empower the Executive Branch to ‘legislate’ on its own—especially when that ‘legislation’ is contrary to actual existing legislation.
The Executive Branch cannot usurp the power bestowed on Congress by the Constitution—even to fill a void.
Hanen makes clear that his injunction against the DACA program does not require the government to take “any immigration, deportation, or criminal action against any DACA recipient.”
In other words, he is not interfering with the government’s prosecutorial discretion to decide whether or not to detain, prosecute, or remove an illegal alien. But granting them government benefits, such as access to Social Security and a work permit? That is now out the door.
We will see whether Biden’s Department of Homeland Security actually abides by that restriction. Don’t hold your breath.
This piece originally appeared in The Daily Signal