The legality of the Deferred Action for Childhood Arrivals (DACA) program remains unsettled. On Wednesday a three-judge panel of the Fifth Circuit Court of Appeals found that the lawsuit brought by Texas and eight other Republican-led states in May 2018 is likely to succeed on the merits and sent the case back to the U.S. District Court – Southern District of Texas. Chief U.S. Circuit Judge Priscilla Richman determined that the district court is in the best position to make a ruling.

“A district court is in the best position to review the administrative record in the rulemaking proceeding,” Judge Richman wrote. The Court of Appeals does not have the administrative record of what changes the Biden administration has in store for DACA through a new rule written and published on the Federal Register in August, putting it through a public notice and comment process. The new rule is scheduled to take effect on October 31. Instead of waiting until the new rule takes efect and then weighing in on it, the Fifth Circuit ruled that it is best for the case to go back to U.S. District Judge Andrew Hanen who in July 2021 ruled that DHS implemented DACA in violation of the Administrative Procedure Act.

The legal trail gets a little complicated but suffice it to say that even Barack Obama admitted that DACA was illegal when he signed it into effect. Joe Biden may or may not remember that (who knows what he remembers these days) but when the ruling came down on Wednesday, President Unity did what he does – he went off on “MAGA Republicans.” This is where I point out that both Judge Richman and Judge Hanen were appointed by then-President George W. Bush. They are not Trump appointees. Two of the judges on the three-judge panel of the Fifth Circuit who determined the ruling with Judge Richman were appointed by Trump. The other two judges were U.S. Circuit Judges James Ho and Kurt Engelhardt. Biden simply doesn’t know what else to do but to bellow about MAGA Republicans when he’s losing an argument.

The Biden administration faces an uphill battle. DACA will ultimately end up in the Supreme Court for a final decision. This just puts it one step closer.

The Biden administration faces a tall task in winning Hanen’s approval of its new version of DACA. He is a longtime critic of Democratic presidents’ claims that DACA is merely an exercise of prosecutorial discretion by the federal government — deciding who not to deport — given it lacks the resources to remove the estimated 11 million people living in the U.S. without papers.

He issued an injunction in February 2015 blocking an expanded version of DACA and Deferred Action for Parents of Americans, or DAPA, two directives Obama unveiled in November 2014, after a coalition of 26 states led by Texas sued.

The Fifth Circuit upheld Hanen’s injunction. A 4-4 split at the Supreme Court in June 2016 left the order in place.

The Supreme Court weighed in on DACA again in June 2020 when a 5-4 majority kept the program alive, finding the administration of former President Donald Trump had arbitrarily decided to end it.

On Wednesday the court stopped short of judicially dismantling it. DACA recipients can continue to receive legal protections. The circuit court ruled that no new DACA applications may be processed. Biden’s remarks on the ruling are filled with irony.

“I am disappointed in today’s Fifth Circuit decision holding that DACA is unlawful. The court’s stay provides a temporary reprieve for DACA recipients but one thing remains clear: the lives of Dreamers remain in limbo,” Biden said.

“Today’s decision is the result of continued efforts by Republican state officials to strip DACA recipients of the protections and work authorization that many have now held for over a decade,” the president added.

“And while we will use the tools we have to allow Dreamers to live and work in the only country they know as home,” Biden continued, “it is long past time for Congress to pass permanent protections for Dreamers, including a pathway to citizenship.”

“My Administration is committed to defending Dreamers against attacks from Republican officials in Texas and other states,” Biden concluded. “This challenge to DACA is just another example of the extreme agenda being pushed by MAGA-Republican officials.”

The Obama-Biden administration put DACA recipients in limbo. Obama went around Congress in 2012 for political purposes. He was up for re-election that year. The only real solution is for immigration laws already on the books to be enforced. If reforms need to be made, then Congress has to make the law. A majority of Americans think that DACA recipients should be allowed to remain in the United States legally. However, that does not necessarily mean they should be allowed a pathway to citizenship. There are currently over 600,000 DACA recipients in the system.

Biden’s DOJ vows to continue its fight. DHS Secretary Mayorkas is disappointed.

Department of Justice spokesperson Dena Iverson said in a statement that the department “respectfully disagrees with the decision and will continue to vigorously defend the lawfulness of DACA as this case proceeds.”

Homeland Security Secretary Alejandro Mayorkas said following the ruling that he was “deeply disappointed” by the decision.

“I am deeply disappointed by today’s DACA ruling and the ongoing uncertainty it creates for families and communities across the country. We are currently reviewing the court’s decision and will work with the Department of Justice on an appropriate legal response,” he said in a statement, urging Congress to pass legislation “to provide permanent protection to the hundreds of thousands of Dreamers who call the United States home.”

The Supreme Court has ruled twice on DACA. In June 2016 the Supreme Court left Judge Hanen’s injunction against new applicants in place. In June 2020 the Court ruled with a 5-4 majority to keep the program, claiming that Trump arbitrarily decided to end it.

DACA recipients cost Texas more than $250 million per year in education, and medical and social services.