July 19, 2021
Landmark opinion corrects ‘self-serving overreach’
WASHINGTON—Those who champion the rule of law got a huge victory on Friday when U.S. District Judge Andrew Hanen of the Southern District of Texas issued an opinion that effectively struck down Deferred Action for Childhood Arrivals (DACA), which has stood since President Obama enacted it via Department of Homeland Security (DHS) policy memorandum.
The Immigration Reform Law Institute (IRLI) had filed a friend-of-the-court brief in the case on behalf of U.S. Reps. Steve King (R-IA) and Paul Gosar (R-AZ)
In its brief, 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.
Turning to a recent Supreme Court decision that blocked the Trump administration recission of DACA, IRLI pointed out that the Court, in the majority opinion written by Chief Justice Roberts, actually 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.
The opinion on Friday exposed how the Obama administration did not go through the proper steps to put such a sweeping directive into law. As Judge Hanen wrote, “DHS failed to engage in the statutorily mandated process, so DACA never gained status as a legally binding policy that could impose duties or obligations.”
Even if DHS had gone through the statutorily mandated process, the opinion found that the action would still be illegal. “Thus, all DACA applicants and recipients fall into a category for removal regardless of their mode of entry,” Judge Hanen wrote. “The DACA Memorandum prevents immigration officials from enforcing these provisions of the [Immigration and Nationality Act].”
“We applaud Judge Hanen for his wisdom in this most important case,” said Dale L. Wilcox, executive director and general counsel of IRLI. “While the impact this opinion will have on the reckless policy of DACA itself is huge, it also addressed the vital constitutional questions at issue here. At the most fundamental level, only Congress can grant such a wide-ranging amnesty to such a large group of illegal aliens. The president does not have that power. To allow this policy to stand would have been an endorsement of self-serving overreach by the executive branch.”
The case is Texas v. DHS, No. 1:18-cv-0068 (S.D. Tex.).
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