IRLI Takes on Duplicate DACA

February 21, 2023

Shows court why program is unconstitutional

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in a Texas federal district court in support of Texas and other states suing to end the Biden administration’s new duplication of the Obama-era Deferred Action for Childhood Arrivals program (DACA). The original program has been struck down by the Fifth Circuit Court of Appeals, in part because it never went through the mandatory notice-and-comment process. In response, Biden issued an exact copy of the original program, and sent it through notice and comment. Now it is the district court’s job to decide, in the first instance, if duplicate DACA is substantively lawful.

In its brief, IRLI shows that duplicate DACA, like the original program, violates the Take Care Clause of the Constitution. In prior opinions reacting to Biden’s unlawful border actions, Texas district courts and the Fifth Circuit have been busy explicating the executive’s constitutional duty to take care that the nation’s laws be faithfully executed. As these courts have written, the duty to take care was included in the Constitution to prevent the executive from “dispensing” with the law by refusing to enforce it against large classes of people selected by the executive. Such “dispensing” is exactly what duplicate DACA does, IRLI points out, and urges the court to strike it down on this alternative basis. 

“This case remains important for a host of reasons, not the least of which is that it is Congress, not the executive, that has the constitutional authority to admit aliens or legalize illegal aliens,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In the current border crisis brought on by the executive’s refusal to perform its duty under the law, it is urgent that the courts forcefully reiterate that principle, and we hope this court does so.”

The case is Texas v. United States, No. 1:18-cv-00068 (S.D. Tex.).