Will Duplicate DACA be Revived?

April 16, 2024

IRLI shows Fifth Circuit program is unconstitutional

WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a brief in the Fifth Circuit Court of Appeals opposing the Biden Administration’s bid to reinstate its recent duplication of the Obama-era Deferred Action for Childhood Arrivals program (DACA).

The original DACA was struck down by the Fifth Circuit, 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. But a Texas federal district court then struck down this replicant program as substantively unlawful.

Opposing the administration’s appeal of this ruling, IRLI shows in its brief that duplicate DACA is not just unlawful, but unconstitutional. Like the original DACA, duplicate DACA makes an exception to the immigration laws for a large, defined class of illegal aliens. That is, it suspends the law, or provides a dispensation from it, for this class. But the Constitution vests the authority to write laws in Congress, not the executive, which must “take Care that the Laws be faithfully executed.” These provisions leave an administration with no authority to rewrite laws by creating exceptions to them.

“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. “Congress has repeatedly refused to legalize DACA recipients, and no administration can take that step in its place. We are not surprised that this administration decided just to reissue this lawless program, and hope the court explicitly rules that, in doing so, it violated the Take Care Clause.”

The case is Texas v. United States, No. 23-40653 (Fifth Circuit).