Jared Culver's Picture


  by  Jared Culver

Southern District of Texas District Court Judge Hanen finally ruled against the Deferred Action for Childhood Arrivals (DACA) program after years of legal back-and-forth. The short (by judicial standards) 40-page opinion is a bit anticlimactic, largely because the Federal government put up very little fight. In fact, if you examine the history of DACA closely, it never seemed like the Democrats who created it cared all that much.

That may surprise you given that Democrats caused a government shutdown over DACA at one point during the Trump Administration. Certainly, both Presidents Obama and Biden pushed for a legislative solution for the aliens they termed DREAMers who were “brought” to the United States illegally as children. However, the creation of DACA by the Obama Administration during an election year (and rumors of a potential Republican bill on the subject by Senator Marco Rubio) was completely amateurish and haphazard. For a supposed priority, President Obama failed to legally fortify his effort (and failed to push the DREAM Act when he had sixty votes in the Senate and a majority in the House of Representatives).

One reason for concluding Obama’s heart wasn’t really into it is that he said on many occasions, prior to DACA, that he had no authority to do it. Judge Hanen pointed that out in his opinion. Indeed, if President Obama had really cared, why did it take over three years into his first term to create the program? Read this quote from President Obama yourself:

“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed -- and I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.”

Another obvious reason for DACA’s failure was in the way it was created. Rather than going through the notice and comment rulemaking process required by the Administrative Procedures Act (APA), Obama had his Secretary of Homeland Security draft a memo, instead. This, immediately, created a legal threat to the program’s existence. Not only did it have the problem of violating immigration law on its face, but it had the procedural problem of not complying with the APA. Programs created by agencies have to be publicly noticed, detail the action occurring, and provide an opportunity for the public to comment. Failure to comply with the APA can render even legal agency actions unlawful.

The final reason to conclude DACA was never a serious attempt at anything other than virtue signaling was that it was so obviously a violation of the separation of powers. Then-Attorney General Jeff Sessions realized this folly in 2017. He said:

“Our collective wisdom is that the policy is vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit.

The Fifth Circuit specifically concluded that DACA had not been implemented in a fashion that allowed sufficient discretion, and that DAPA was “foreclosed by Congress’s careful plan.”

In other words, it was inconsistent with the Constitution’s separation of powers. That decision was affirmed by the Supreme Court by an equally divided vote.

If we were to keep the Obama Administration’s executive amnesty policy, the likeliest outcome is that it would be enjoined just as was DAPA. The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program.”

As usual, Senator/AG Jeff Sessions is ultimately proven right, and detractors are proven wrong. Both the Supreme Court and the Fifth Circuit Court of Appeals had already sent strong signals that DACA was legally problematic, both substantively and procedurally, under the APA. Yet President Obama did nothing to even attempt to cure what ailed the program.

The Biden Administration entered office with an Executive Order called “Preserving and Fortifying DACA.” That, at least, sounds encouraging if you are a fan of the program. But what did that amount to in practice? Only after the DACA memo was enjoined did the Federal government move, and what they decided to do was literally copy and paste the legally deficient memo into a regulation for notice and comment.

In other words, they preserved DACA by regurgitating it into a rule with no changes to fix any substantive issues identified by the same courts that would ultimately review the rule. This is akin to getting a failing grade on your college paper, getting a second chance, and then submitting the exact same paper to the professor.

If you are baffled by this astonishing lack of effort, you are in good company; Judge Hanen was as well. In addition, the legal effort to defend the rule was so similar to the (losing) argument in defense of the memo that the judge was able to just reference his prior opinion in full and avoid making the same points again. That is why the opinion in this case is so short. The following are just a couple of quotes where Judge Hanen points out the lazy, sloppy, or nonexistent effort of the government in defending DACA:

“Despite many court decisions to the contrary, DHS maintains that DACA is merely an exercise of prosecutorial discretion. The DHS does not need the 2012 DACA memorandum or the Final Rule to defer prosecution.”

This reminds me of the movie ‘A Few Good Men’ where the attorney “strenuously” objects to a court ruling. After a decade to think about it, the government could not muster any new arguments and simply restated the same clearly failing case.

More Hanen:

“While the Court is perplexed as to why DHS feels that this Court should try to tailor the Final Rule when the agency made no attempt to do so, the Court will follow the established two-part test to determine whether, and to what extent, severability is proper.”

It is indeed perplexing. For all the talk of trying to preserve and fortify DACA, when the rubber hit the road, the government made no effort to help save any part of the program. Severability is all about trying to save the parts even if the whole is unlawful. That the government made no effort to do so, and didn’t even really make an argument for how a judge might do it, is staggering.

While all of this will be lost on the media who will report credulously that the judge callously turned back a spirited defense by the government, the judicial record is clear. Let he who hath an ear hear the truth: DACA was set up to fail by the choices made by both the Obama and Biden Administrations.

DACA was unlawful, procedurally and substantively, from inception. Not only was the program counter to the immigration statutes, but it violated the separation of powers mandated by the Constitution, which requires Congress to pass laws. Providing work authorization, lawful status, and other assorted benefits to illegal aliens requires legislation enacted by Congress. If the President can draft immigration law, then Congress is essentially null and void, along with the voters Congress represents.

Anyone interested in democracy and the right to vote must reject all executive actions that render the voters immaterial. If unelected bureaucrats can draft the laws of the nation, we no longer live in a nation of, by, and for the people. DACA, whether you support the policy or not, stands for the dangerous usurpation of the people’s power and that of their duly elected representatives.

President Obama himself had made that clear in his public statements before turning to executive action as a campaign ploy. However, the writing had been on the wall for years. Attorney General Sessions saw it clearly six years ago. The fact that the Biden Administration did little more than copy and paste the memo into a rule and make the same failed arguments in court to defend it suggests the issue of DACA has continued to be nothing more than political theater.

So this is the way DACA ends, not with a bang, but a whimper. Its most ardent backers offered little more than a reheated legal argument that had failed countless times. For Americans, this is a positive sign that portends failure for the Biden parole policies that are feeding the border crisis and overwhelming our communities. None of the parole programs Biden has used have complied with the APA. Of course, they all are also legally incompatible with the separation of powers and current immigration law. The downfall of DACA is also a win for American workers, as Judge Hanen wrote:

“The Court, while pointing out DHS made no effort to correct the substantive faults found in the 2012 DACA memorandum when it adopted it as the Final Rule, is not stating that there was no mention of these problems…DHS admitted that in principle DACA recipients take jobs that could otherwise be filled by American citizens or other aliens legally in the country. DHS discounted this effect because it found the data “unquantifiable.”

The harm to American workers was just another issue the government could not be bothered to consider within the DACA program. Up next (assuming DHS can muster an appeal) the Supreme Court. Hopefully, after that, the unlawful parole programs that are causing a great deal of quantifiable damage to communities across the country.

JARED CULVER is a Legal Analyst for NumbersUSA

Updated: Fri, Sep 15th 2023 @ 8:52am EDT

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