Last Friday, a federal judge in Texas issued an 82-page decision holding that the Deferred Action for Childhood Arrivals (DACA) program initiated under the Obama administration “is illegal.” The court installed a “permanent injunction against its continued operation” for new applications, adding that “nothing in this injunction should be read as ordering DHS or any other governmental entity to cancel or otherwise terminate DACA status for any individual who currently is, as of this date, a DACA recipient in good standing.”
Once again, a dysfunctional and irresponsible Congress is to blame for this mess.
In a press release issued the same day as the 2012 DACA memorandum, President Obama explained that the program was a consequence of “the absence of any immigration action from Congress.” That much is clear: If Congress had acted, the Obama administration would not have been positioned to do something about it. Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas pinned his decision to halt DACA on that very rationale, reasoning that “[a]n agency’s role is to administer the laws Congress passes, not to enact its own new legislative policy.” If Congress doesn’t act to fix immigration, in other words, no other branch of government can.
Hence, July 16, 2021, is now the bright red line for undocumented immigrants brought to the United States as children, otherwise known as DREAMers. If their applications were filed before that date — and also show that they were 16 or younger when they arrived, under 31 years of age when Obama signed the executive order creating DACA, and have lived in the U.S. since 2007, among other requirements — they have a shot at protection from deportation. Otherwise, they are out of luck under DACA. According to the Center for American Progress, nearly 256,000 U.S.-born citizens have at least one parent who is a DACA recipient. And polls show two-thirds of the American public supports legal status for DREAMers.
Congress still has done nothing.
For its part, the Trump administration rescinded DACA in September 2017. In June of 2020, the U.S. Supreme Court in Department of Homeland Security v. Regents of the University of California reversed that maneuver, holding in an opinion authored by Chief Justice John Roberts that President TrumpDonald TrumpPoll: 73 percent of Democratic voters would consider voting for Biden in the 2024 primary Biden flexes presidential muscle on campaign trail with Virginia’s McAuliffe Has Trump beaten the system? MORE’s rescission decision was “arbitrary and capricious” under the general statute governing the actions of executive branch agencies, known as the Administrative Procedure Act (APA). Justices Sotomayor, Thomas, Alito, Gorsuch and Kavanaugh all concurred in and dissented to various parts of the decision in a hodge-podge of views that demonstrated how extremely complex and nuanced the law is under the APA. President Joe BidenJoe BidenBiden authorizes up to 0M for Afghan refugees Poll: 73 percent of Democratic voters would consider voting for Biden in the 2024 primary Biden flexes presidential muscle on campaign trail with Virginia’s McAuliffe MORE pledged that the Justice Department will appeal the latest ruling out of Texas, noting in a statement that, in the nine years that have passed since Obama initiated the DACA program, “Congress has not acted to provide a path to citizenship for Dreamers.”
The judge’s reasoning — i.e., that Congress makes laws, not agencies — makes common sense. But it is not at all obvious from a legal and constitutional standpoint. To be sure, Article I of the Constitution vests in Congress the power to make laws, and Article II gives the president — and the vast executive branch apparatus below him — the authority to execute the laws. But as I’ve explained in my academic scholarship, the constitutional line between law-making and law execution is blurry. The Supreme Court has long held that agencies can constitutionally enact regulations that function like statutes so long as Congress gives them some guiding principles for doing so. Many agencies also have so-called administrative law judges who make threshold rulings on questions of federal law — even though they are not part of the Judicial Branch under Article III. The Constitution sets up a system of separated powers, to be sure, but the process of checking-and-balancing can be messy at times, and the relatively terse constitutional text does not plainly account for many agency programs.
Yet as a matter of purely executive power, parts of DACA fit the bill. The prime example of executive power is the police officer and prosecutor, who decide whether or not to enforce a law enacted by another branch of government against a particular entity or individual. A police cruiser hides in the bushes but only pulls over and tickets one of the three cars that whiz by in tandem — not all of them. Likewise, the Department of Homeland Security (DHS) cannot possibly enforce immigration laws against every violator. The agency — like a police officer or prosecutor — picks and chooses. DACA itself is accordingly framed as “the exercise of our prosecutorial discretion” not to “enforce the Nation’s immigration laws against certain young people who were brought to this country and know only this country as home.” Presidents are elected in part on the basis of how candidates promise to enforce — or not enforce — the law. Obama decided not to enforce it against DREAMers.
The wrinkle with DACA is that it went further and arguably affirmatively granted benefits to DACA recipients — a move that may look more like law-making than law execution. Judge Hanen thus concluded that “DHS may not award lawful presence and work authorization to approximately 1.5 million aliens for whom Congress has made no provision,” quoting Justice Thomas’s dissent in the Regents case for the proposition that DACA is more like a “substantive or legislative rule” than a decision not to enforce the law. Obama decided not to enforce it against DREAMers.
To be sure, in legislation it enacts, Congress may pass off what I call the “legislative baton” to agencies that can then engage in notice-and-comment rulemaking to produce regulations that operate just like laws.
When they take shortcuts around the notice-and-comment process, courts often send them back to do it the right way under the APA. The bomb-throwing aspect of Hanen’s decision is his conclusion that Congress hasn’t authorized DHS to create the DACA program no matter what process it uses to do so. He tossed the hot potato back to Congress, cutting DHS out of the formula and leaving the hundreds of thousands of people affected by the DACA program — 814,000 applicants alone as of 2018, according to Hanen’s opinion, not counting their family members — in an agonizing limbo.
While DREAMers continue to wait indefinitely for a final word on their fates, their fraught journey through our political and legal system continues to stain our democracy, and shame our feckless Congress.
Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.