Federal judge says DACA was 'illegally implemented' but he won't shut it down for those already enrolled


A federal judge in Texas has issued a permanent injunction which prohibits anyone new from signing up for DACA. However the judge stopped short of ending DACA for the roughly 600,000 people who have already applied.

U.S. District Court Judge Andrew Hanen in Brownsville, Texas, said the Obama administration failed to follow federal administrative rules in launching the Deferred Action for Childhood Arrivals program in 2012. But he put the effect of most of his ruling on hold while the case is appealed.

“It is not equitable for a government program that has engendered such significant reliance to terminate suddenly,” Hanen said. As a result, the status of people currently in the program does not change, and they can continue to seek renewal of the DACA status.

But he said the Department of Homeland Security cannot grant any new applications from people who have never been in the program.

Despite the fact that DACA will continue to exist under this ruling, the judge’s decision was definitely a rebuke of former president Obama:

Hanen’s ruling called Deferred Action for Childhood Arrivals, or DACA, an “illegally implemented program” and said “the public interest of the nation is always served by the cessation of a program that was created in violation of law and whose existence violates the law.”

The judge’s decision made it clear that action such as DACA needs to originate in Congress: “Congress has not granted the Executive Branch free rein to grant lawful presence outside the ambit of the statutory scheme,” Hanen wrote. In response to the decision, some Democrats are calling for an appeal to overturn the decision:

But others are implicitly agreeing with Judge Hanen that congressional action is necessary to rescue DACA:

The NY Times reports that the Biden administration will appeal this which means it’s going to return to the Supreme Court sooner or later:

The ruling also represents a significant new challenge for Mr. Biden as he attempts to build support in Congress for his ambitious plan to legalize up to 10 million other immigrants who are in the country without authorization.

The Biden administration is expected to appeal the ruling, and unless Congress steps in with a legislative remedy, the ultimate legality of DACA is almost certain to be decided by the Supreme Court…

In June 2020, the Supreme Court ruled against the Trump administration’s decision to terminate the program, deeming its rescission in 2017 “arbitrary and capricious.” But the high court did not rule on whether the program had been legally adopted.

I guess the immediate question is whether this puts some additional pressure on moderate Democrats to get rid of the filibuster so they can expand DACA and offer a path to legal status before they lose their majority next year. Democrats were very concerned about Trump’s improved performance with Hispanic voters last year. The politics of offering citizenship to millions of people has to be very appealing to them at this moment.

But if we do go down that path, what happens at the southern border? Biden said about six months ago that he didn’t want to see 2 million people show up at the border this year. We’re already at 1.1 million as of last month. He should think carefully about what might happen if he loosens up the rules even more.