Victory! Fifth Circuit Strikes Down DACA

October 6, 2022

IRLI had shown court why program should stay enjoined

WASHINGTON—Yesterday, in a major victory for the rule of law, the Fifth Circuit Court of Appeals affirmed the judgment of a Texas federal district court finding the Obama-era Deferred Action for Childhood Arrivals program (DACA) unlawful and blocking its implementation going forward. The Immigration Reform Law Institute (IRLI) had filed a friend-of-the-court brief before the appellate court urging that result.

In its brief on appeal, IRLI showed that DACA is unlawful in a number of respects; for example, it represents a systemic, programmatic failure to carry out the executive’s constitutional duty to take care that the nation’s laws be faithfully executed. IRLI also showed that the Supreme Court has held that DACA is a substantive rule. That holding dooms DACA, because a court must vacate substantive rules that did not go through the notice and comment process, and it is undisputed that DACA never went through that process.  

In yesterday’s ruling, the Fifth Circuit agreed that DACA was invalid because it never went through notice and comment. It also held that DACA was contrary to law because it provides that aliens whom the law says may be removed may not be removed.

Before the case was decided, the Biden administration issued another rule essentially duplicating DACA, and this time it went through the notice and comment process. Lacking the administrative record for that rule, the court sent the case back down to the district court to determine whether this new, duplicate DACA is also contrary to law.

“The key point here—and why this is a major victory—is that the court found DACA unlawful,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Obama never had the authority for this; it is Congress, not the executive, that has the constitutional power to admit aliens or legalize illegal aliens. Given the current border crisis brought on by the executive’s refusal to perform its duty under the law, we are pleased that the Fifth Circuit forcefully reiterated this vital principle.”

The case is Texas v. United States, No. 21-40680 (Fifth Circuit).