Willie R. Tubbs, FISM News
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Wednesday, the 5th Circuit Court of Appeals ruled the Deferred Action for Childhood Arrivals (DACA) program was against U.S. immigration law but stopped short of forcing the deportation of people who were brought to the country illegally as children.
A three-judge panel representing the New Orleans-based appellate court ruled that then-President Barack Obama and his administration erred in the method by which they created DACA.
It is easy to forget that DACA was never established as a law nor was it approved by Congress. Rather, in 2012, Homeland Security Secretary Janet Napolitano issued a memorandum that established a new policy under which deportations of “Dreamers” was halted, and that people defined as “Dreamers” could stay in the country indefinitely so long as the reapplied for the program every two years.
The court ruled this approach ran contrary to the Administrative Procedure Act, which established strict procedures for how government agencies develop and issue regulations.
Among the key components of creating a new rule is allowing for pending rules to be subjected to public comment. This never happened in 2012, and a year later a Republican-controlled House voted to defund the program. Republicans have long contended the president and his cabinet do not enjoy the authority to waive laws.
That the Obama administration circumvented Congress, and even normal federal rule-creating channels, has proved DACA’s at-least-temporary legal undoing.
“DACA violates the substantive requirements of the APA,” the ruling reads. At a different point in the ruling, the court also cited a lack of “clear congressional authorization” for the act.
Current Secretary of Homeland Security Alejandro Mayorkas posted a lengthy thread on Twitter in which he vigorously disagreed with the court.
“I am deeply disappointed by today’s #DACA ruling and the ongoing uncertainty it creates for families and communities across the country,” one tweet reads. “We are currently reviewing the court’s decision and will work with @TheJusticeDept on an appropriate legal response.”
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 @TheJusticeDept on an appropriate legal response.
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— Secretary Alejandro Mayorkas (@SecMayorkas) October 6, 2022
Wednesday’s ruling, though damaging for the future of DACA as a program, will have no immediate effect on the lives of “Dreamers.” The court maintained a former order allowing DACA recipients to remain in the country and continue to renew their application every two years.
“We also recognize that DACA has had profound significance to recipients and many others in the ten years since its adoption,” the ruling reads.
Mayorkas announced that his agency would continue to process renewals and to accept (though not process) new applications, both of which are in keeping with court dictates.
Since its creation, DACA has been the frequent subject of legal and political battles. Then-President Donald Trump attempted to disassemble the program in 2017.
In a true piece of irony, the Supreme Court eventually ruled that Trump had failed to follow proper procedure when ending a program that a new court has now ruled was created by a different president who also failed to follow proper procedure.
All indications point to DACA eventually being ruled upon by the Supreme Court, as the Justice Department has promised to continue its fight in favor of the program.
According to U.S. Citizenship and Immigration Services, about 594,000 “Dreamers,” all of whom are now aged between their mid-20s and early-30s, are enrolled in DACA.