Judge again declares DACA illegal, likely to go to Supreme Court

FILE – Protesters gather outside the US Supreme Court, where the court is hearing arguments on Deferred Action for Childhood Arrivals – DACA – which could affect the fate of nearly 700,000 “Dreamers” brought to the US (Jahi Chikwendiu/The Washington Post via Getty Images)

When a federal judge on Wednesday invalidated a revised version of a federal policy that barred the deportation of hundreds of thousands of immigrants brought to the United States as children, he declined to order an immediate end to the program and the protections it affords to recipients.

U.S. District Judge Andrew Hannen agreed with Texas and eight other states suing to end the Deferred Action for Childhood Arrivals, or DACA, program. The judge’s ruling was ultimately expected to be appealed to the U.S. Supreme Court, the third time the program’s fate has been sent before the high court.

“While sympathetic to the plight of DACA recipients and their families, this Court has for some time expressed concerns about the legality of the program,” Hanen wrote in his 40-page ruling. “The solution to these deficiencies lies with the legislative, not the executive or judicial branches. Congress, for whatever reason, has chosen not to pass legislation like DACA … The executive branch cannot usurp the powers granted by Congress. The Constitution — even filling a vacuum — to do.”

Hanen’s order expands the existing ban on DACA, which prevents the government from approving any new applications, but leaves the program intact for existing recipients during an ongoing legal review.

Hanen also rejected a request by the states to order the program to end within two years. Hanen said his order does not require the federal government to take any action against DACA recipients, known as “Dreamers.”

Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, or MALDEF, which is representing DACA recipients in the lawsuit, said it will ultimately be up to higher courts, including the Supreme Court, to determine DACA’s legality and whether Texas has proven that it is harmed by the program. whether

“Judge Hanen consistently erred in addressing both of these issues, and today’s ruling is more of the same flawed analysis. We look forward to defending the lawful and much-needed DACA program on high court review,” Saenz said.

The Texas attorney general’s office, which represents states in the case, and the U.S. Department of Justice, which represents the federal government, did not immediately return emails or calls seeking comment.

States have argued that the Obama administration did not have the authority to create the first program in 2012 because it blocked Congress.

In 2021, Hanen declared the program illegal, ruling that it was not subject to public notice and comment periods required under the Federal Administrative Procedure 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 comment as part of a formal rule-making process.

But Hanen, who was appointed by then-President George W. Bush in 2002, ruled that the updated version of DACA was still invalid because the new version of the Biden administration was essentially the same as the old version, started under the Obama administration. Hanen has previously said DACA is unconstitutional.


FILE – Immigrant rights activists take part in a rally in front of the US Supreme Court in Washington, DC on November 12, 2019. (MANDEL NGAN/AFP via Getty Images)

Hanen previously ruled that the states had standing to file their lawsuits because they were harmed by the program.

States claim that when immigrants are allowed to stay in the country illegally, it costs them millions of dollars in health care, education and other costs. The states of Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi filed suit.

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

According to the US Citizenship and Immigration Services, there were 578,680 people enrolled in DACA at the end of March.

The program has faced a roller coaster of court challenges over the years.

In 2016, the Supreme Court deadlocked 4-4 on an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the high court ruled 5-4 that the Trump administration wrongly ended DACA, allowing it to remain in place.

In 2022, the 5th US Circuit Court of Appeals in New Orleans overturned Hanen’s earlier ruling invalidating DACA, but sent the case back to him to review changes made to the program by the Biden administration.

President Joe Biden and advocacy groups have called on Congress to pass permanent protections for “Dreamers.” Congress has repeatedly failed to pass proposals called the DREAM Act to protect DACA recipients.

“We continue to urge Congress and President Biden to create permanent solutions for all immigrants so that no one is left on the dangerous road that DACA has been on for the past decade,” Veronica Garcia, an attorney at the Immigrant Legal Resource Center, an advocacy organization, said in a statement. said.


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