Washington Watch: Appeals court rules against DACA


The 5th Circuit Court of Appeals this week upheld a federal district court’s opinion that the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program violated federal law.

In its October 5 ruling, the appeals court maintained the injunction that prevents the U.S. Department of Homeland Security (DHS) from approving new DACA applications, but current DACA recipients may keep and renew their status while legal action continues.

The appeals court agreed with the lower court that the 2012 memorandum that established DACA violated the Administrative Procedures Act (APA) because it violated that law’s procedural requirements and because it exceeded DHS’s statutory authority. The court found that the DACA memorandum was not simply a policy statement, but rather a substantive rule that should have gone through the required notice and comment proceedings for federal regulations.

In addition, the court found that DACA was substantively contrary to immigration law, essentially saying that it is up to Congress to provide the relief from deportation and other benefits that DACA bestows, not DHS.

What may happen now

The appeals court’s ruling applies specifically to the 2012 DACA memorandum, and not to a final DACA rule that goes into effect on October 31 and will supersede the memorandum. The appeals court sent the case back to the district court to consider whether that rule also violates federal law. Given that the rule was promulgated through a notice and comment proceeding, the district court may find that it complies with the APA’s procedural requirements. However, because the DACA rule simply codifies the policy established by the memorandum, it is highly likely that the district court will find that the rule also exceeds DHS’s statutory authority.

After the district court rules again, the case is likely to return to the appeals court and eventually the Supreme Court. There appears to be little chance that the DACA rule will be upheld at any point in this legal process, so the pressure for Congress to act to protect DACA recipients and other Dreamers will only mount as the case continues its way through the courts.

About the Author

Jim Hermes
Jim Hermes is associate vice president of government relations at the American Association of Community Colleges.
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