DACA’s End Looms

February 25, 2019

IRLI and Congressmen King, Gosar press court for judgment

WASHINGTON – The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief supporting the State of Texas and other states in their lawsuit to overturn the Obama-era Deferred Action for Childhood Arrivals program (DACA) as unconstitutional and in violation of federal statutory law. In its brief in the U.S. District Court for the Southern District of Texas, IRLI represents Congressmen Steve King of Iowa and Paul A. Gosar of Arizona.

IRLI argues that DACA is unlawful on a number of grounds. For example, no law passed by Congress authorizes the Department of Homeland Security (DHS) to circumvent congressionally-enacted protections for American workers by granting wholesale work authorizations to DACA recipients. Because DHS does just that in DACA, the program is ultra vires (that is, beyond the agency’s power) and void under federal law. Also, in DACA, DHS refuses to enforce immigration laws that it believes lead to the “wrong” result when it comes to a certain class of illegal aliens, even though Congress has repeatedly refused to enact DACA-like amnesties for that class. By thus placing its own policy choice over that of Congress, DHS fails to “take Care that the Laws be faithfully executed,” as required by the U.S. Constitution.

IRLI also points out in its brief that the cases around the country in which plaintiffs have asked federal courts to enjoin the Trump Administration from rescinding DACA do not prevent the court in this case from vacating the program. Indeed, IRLI points out that if DACA is vacated, those other cases instantly become moot, because DACA will no longer exist to be rescinded, or for its rescission to be enjoined.

“It is high time the illegality of DACA was recognized by the federal courts,” said Dale L. Wilcox, executive director and general counsel of IRLI. “It is flagrantly unconstitutional for a federal agency to write its own laws, especially if they contradict those of Congress. For the sake of the rule of law in this country, the statement that DACA is unlawful needs to be made loud and clear, and affirmed by the Supreme Court as soon as possible.”

The case is Texas v. United States, No. 1:18-cv-0068 (S.D. Tex.).

For additional information, contact: Brian Lonergan • 202-232-5590 •