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After the 5th Circuit’s ruling, does DACA have a future?

The decision against the Obama-era policy seems to invite other challenges to immigrant rights

Susana Lujano, left, a “dreamer” from Mexico who lives in Houston, rallies with other activists in support of the Deferred Action for Childhood Arrivals program, also known as DACA, at the U.S. Capitol in Washington on June 15. (J. Scott Applewhite/AP)

On Oct. 5, the U.S. Court of Appeals for the 5th Circuit ruled in Texas v. United States, the case challenging the DACA program. DACA, or Deferred Action for Childhood Arrivals, turned 10 this summer — and it is more at risk than ever. The program has given many young undocumented immigrants protection from deportation, providing them authorization to work and the opportunity to build a life woven into the fabric of the United States. But DACA beneficiaries have been living in limbo since 2017, when President Donald Trump announced that he would end the program; DACA has been in the courts ever since, tangled in various strands of litigation.

The 5th Circuit’s recent decision both announces a likely end to the program and delays a more definite ruling. Although the decision agreed with the lower court’s “excellent opinion” that DACA suffers “fundamental substantive defects” that make it unlawful, the 5th Circuit sent the case back to the district court for further consideration in light of pending regulations from the Biden administration. These regulations, finalized in August and set to take effect Oct. 31, would almost exactly replicate the existing DACA. However, they contain some changes meant to repair legal flaws identified by the courts.

Because the regulations were finalized between the court hearing and its decision, the court sent the case back to the lower court for it to assess the regulations’ content and their impact on resolving the illegalities the court found. In the meantime, the program remains open for those who already are DACA beneficiaries, but the government will not adjudicate new applications for enrollment in the program.

Here’s what you need to know about the case and DACA.

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Texas argues that the executive branch created DACA illegally

The Obama administration created DACA in 2012, when the Department of Homeland Security issued guidelines for shielding certain undocumented youths from deportation. Texas and a coalition of other states filed suit against it in 2018, six years after the program started, apparently in response to the various lawsuits filed to block Trump’s 2017 decision to end the program. On the lawsuit’s other side, defending DACA, are the U.S. government, the Mexican American Legal Defense and Educational Fund for New Jersey, and 22 DACA beneficiaries. (Full disclosure: I have previously worked with two of these 22 on their DACA cases but am not involved in this lawsuit.)

Texas argues that DACA was created in violation of the Administrative Procedure Act. This law requires that when an administrative rule does more than state a general policy, it cannot be created by executive fiat but must go through procedures that include a period of public comment.

Texas argues that because DACA imposed obligations on states and created rights (such as the authorization to work), it could be established only through APA rulemaking — which the Obama administration skipped.

Further, Texas argues that DACA circumvents congressional intent, as expressed in the Immigration and Nationality Act of 1965, laying out who can be lawfully present in the United States.

Who are the ‘dreamers,’ and are they safe now that the Supreme Court ruled?

The U.S. argues that DACA was a proper use of executive power

The United States and its allied defendants argue that establishing DACA was a lawful exercise of the executive power known as “prosecutorial discretion,” or the Department of Homeland Security’s ability to decide whether to enforce immigration laws against an individual. Historically, DHS has evaluated specific cases to determine whether enforcement in a particular case is a good use of limited resources. If DHS declines to start deportation procedures in a particular case, it calls that “deferred action,” meaning a temporary stay of deportation. Because deferred action has always enabled the individual to work, defendants argue, DACA is simply the same program but on a wider scale.

The 5th Circuit sides with Texas

The court found that DACA is not mere policy but grants significant rights, noting that “[t]he relief at stake is of vital importance to recipients.” Thus, the government should have completed rulemaking under the APA instead of by executive order. Ironically, the very volume of evidence the United States submitted to show the significance of the program undercut the argument that the program was only prosecutorial discretion.

Further, the court found that DACA contravenes law by creating a new category of relief for immigrants — when that role is reserved for Congress.

Separately, the court discussed Texas’s economic interests in regulating DACA, acknowledging that its large undocumented population imposes costs and noting that if DACA beneficiaries were to leave, “Texas would no longer be required to educate those who depart or the children who depart with them.” This hints that the court might welcome a challenge to Plyler v. Doe, the landmark 1982 Supreme Court case requiring states to provide free public education for all children, regardless of immigration status. In May, Texas Gov. Greg Abbott stated that he is interested in challenging that case as well.

Why have so many Americans come to mistrust the Supreme Court?

What’s next?

The 5th Circuit sent the case back to the district court to determine whether the new APA-compliant regulations change its findings on DACA. If not, the case will continue.

Observers expect that the Supreme Court might take the case up again in a coming term. The court last heard a DACA case in 2020, when it ruled that Trump’s decision to end DACA was unlawful — but did not decide whether the program itself was lawful. In 2016, the court upheld another 5th Circuit decision that found a sister program, DAPA, had been unlawfully created. (DAPA would have protected undocumented parents of U.S. citizens.) An equally divided Supreme Court tacitly approved the 5th Circuit’s decision blocking DAPA because its creation exceeded the government’s executive powers. With a court that’s only grown more conservative since then, the DAPA decision suggests a similar outcome for DACA.

Obama created DACA as a stopgap measure until Congress could pass the Dream Act, which would have provided a path to citizenship for these youths. First proposed in 2001, the Dream Act has come before Congress many times, with bipartisan support, with a version now before the Senate. But although 86 percent of Americans supported the Dream Act in 2017, each bill to protect the dreamers has become tangled in heated political debates about immigration. No bill has passed.

Even if Biden’s proposed regulations go into effect, they leave DACA beneficiaries in limbo — still unable to become U.S. citizens, which is what a Dream Act would make possible. Further, young people who were brought to the United States as children but have never received DACA protections will continue to be here precariously.

No matter the outcome of the next court ruling on DACA, only Congress can offer stability to those who’ve grown up in the United States in legal limbo.

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Jaclyn Kelley-Widmer (@jkelleywidmer) is an associate clinical professor of law at Cornell Law School, where she teaches lawyering and directs the 1L Immigration Law & Advocacy Clinic.

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