As I previously wrote, more than nine years after the Obama administration decreed an executive amnesty program known as Deferred Action for Childhood Arrivals (DACA), federal district judge Andrew Hanen has ruled it illegal. By way of brief background, in June 2012, frustrated that Congress refused to pass the DREAM Act amnesty bill (again) and seemingly facing a difficult reelection bid, President Obama established DACA through a three-page memorandum issued by then-Department of Homeland Security (DHS) Secretary Janet Napolitano. DACA eligibility largely mirrored the DREAM Act, and offered amnesty-lite in the form of a deportation reprieve, work permit, Social Security number, and ability for the illegal alien beneficiary to obtain a driver’s license.
The State of Texas and several other states eventually sued, but the litigation was drawn out for years as it appeared that the Trump administration had terminated DACA, only for the U.S. Supreme Court, in a separate case, to rule on a technicality that the process used by the Trump administration to end the program violated the Administrative Procedure Act (APA). The legal action returned to Judge Hanen’s courtroom after President Biden’s inauguration and issuance of a presidential memorandum declaring his administration’s policy of “preserving and fortifying” DACA.
A key aspect of the case is whether or not Texas has standing, a legal prerequisite to sue. Under Supreme Court precedent, a state can establish standing in federal court through a legal concept known as “special solicitude” if the defendant “violated a congressionally accorded procedural right which affected the State’s ‘quasi-sovereign’ interests.” The Fifth Circuit had previously found Texas entitled to “special solicitude” in the earlier legal challenge to the expansion of DACA and the creation of another executive amnesty program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Like Judge Hanen, I will refer to that earlier DACA+DAPA litigation as Texas I.
Consistent with Texas I, Judge Hanen found that Texas easily established the first requirement of “special solicitude” by having a procedural right to challenge DHS’s “affirmative decision to set guidelines to grant lawful presence to a broad class of illegal aliens.” Judge Hanen wrote that Texas has a right under the APA to demand that DHS enforce immigration laws “in the manner dictated by Congress”. He continued, “If the Government’s argument that a state lacks standing to complain about the Executive Branch’s failure to enforce the law in court is accurate, then a state would have no recourse. This is not how our system of federalism was designed to work.”
Moving to the second prong of the analysis, in Texas I the Fifth Circuit found that DAPA affected a “quasi-sovereign” interest by forcing Texas to provide driver’s licenses to these illegal aliens, which are partially subsidized by taxpayers. Instead of making the driver’s license cost argument again, in the DACA case Texas argued it has a “quasi-sovereign” interest in protecting the economic and commercial interests of its legal residents’ (U.S. citizens and legal immigrants) from “labor market distortion” caused by DACA. Judge Hanen agreed, citing a government expert witness who conceded that “DACA congests the workforce.” Applying the simple logic of supply and demand, which advocates of unlimited immigration disregard, Judge Hanen found that “the very existence of a larger eligible workforce ... necessarily contributes to a more competitive labor market, which makes it more difficult for the legal residents of Texas to obtain work.”
Judge Hanen’s highlighting of the economic harm that immigration, both legal and illegal, poses to American workers is consistent with the findings of numerous academic studies as well as separate analysis by my colleague Steven Camarota. It also echoes my testimony earlier this year before the House Judiciary’s Immigration and Citizenship Subcommittee.
In addition to labor market harms, Judge Hanen also found that DACA recipients are fiscal drains on healthcare, education, and social services offered by the state. Again citing the defendant’s (i.e., the Biden administration’s) own expert witnesses, Judge Hanen highlighted that DACA recipients impose a cost of $250 million on Texas per year and an additional $533 million annually in costs to local Texas communities.
After finding that Texas had established standing to sue due to the fiscal harm caused by illegal aliens to American workers and taxpayers, Judge Hanen then examined whether DHS was required by the APA to implement DACA through notice and comment rulemaking. Unpersuaded by the government’s claim that DACA is a mere statement of policy on prosecutorial discretion, Hanen pointed out that the DACA memo contains mandatory language that contradicts its purported conferral of discretion. Specifically, Hanen found that the DACA memo has prescribed criteria with no ability for an adjudicator to deviate from it. Additionally, the government in Texas I and this case were unable to identify a single example of an illegal alien meeting the DACA criteria but receiving a discretionary denial. Hanen even cited the June 15, 2012, DHS press release that announced DACA was “effective immediately” indicating it is a final agency action that had immediate impact.
Having found that the DACA memo violated the APA’s notice and comment requirement, Hanen then examined whether DACA violates substantive immigration law in contravention of the APA. In ruling DACA illegal, Judge Hanen wrote, “The decision to award deferred action, with all of the associated benefits of DACA status, is outside the purview of prosecutorial discretion.” He continued, “While the law certainly grants some discretionary authority to the agency, it does not extend to include the power to institute a program that gives deferred action and lawful presence, and in turn, work authorization and multiple other benefits to 1.5 million individuals who are in the country illegally.” (Judge Hanen used 1.5 million as a midpoint estimate of the potential DACA population from competing estimates of expert witnesses. According to USCIS data, there are 616,030 illegal aliens who are active DACA recipients.)
Returning to the economic harm analysis, Judge Hanen further opined that “DACA actually goes further to undermine Congress’s intent to protect American workers as it requires applicants to apply for work authorization,” which “contradicts the clear congressional purpose of preserving employment opportunities for those persons legally residing in the U.S.” (Emphasis Hanen’s.) Hanen concluded: “DACA is an unreasonable interpretation of the law because it usurps the power of Congress to dictate a national scheme of immigration laws and is contrary to the INA.”
Yet, despite this stern legal rebuke of DACA, Judge Hanen declined to immediately rescind the work permits of the active DACA recipients. Instead, he cut off consideration of new requests and effectively maintained the status quo for active DACA recipients pending a future decision on that issue from either Judge Hanen, the Fifth Circuit, or the Supreme Court. Additionally, Judge Hanen remanded, or sent back, the DACA memo to DHS to explore whether they wish to modify the policy to only include temporary deportation “forbearance”.
Over the weekend, President Biden called the ruling "deeply disappointing" and vowed to appeal.