On Friday, a federal district court judge of the Fifth Circuit ruled that President Obama’s executive amnesty program, known as Deferred Action for Childhood Arrivals (DACA), is illegal. The decision, which fell short of fully restoring the rule of law, importantly concluded that, “Congress has not given [Department of Homeland Security] DHS the power to implement DACA, nor can DACA be characterized as authorized by DHS’s inherent authority to exercise prosecutorial discretion.” Accordingly, this ruling will complicate the Biden administration’s plans to “preserve and fortify” DACA through the notice and comment rulemaking process.
Ruling on the merits, Judge Andrew S. Hanen concluded that DACA was an “illegally implemented program” and that “the public interest of the nation is always served by the cessation of a program that was created in violation of law and whose existence violates the law.”
Judge Hanen reaffirmed his earlier decision, stating that, “Ultimately, ‘the [Immigration and Naturalization Act] INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present,’ and Congress has not granted the Executive Branch free reign to grant lawful presence to person outside the ambit of the statutory scheme.”
The decision follows the Supreme Court’s June 2020 ruling in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, that determined DHS did not follow required Administrative Procedures Act (APA) procedures when it moved to phase out the program. The Supreme Court, however, did not rule on the whether the DACA program is permissible under federal law.
While Judge Hanen ordered DHS to terminate implementation of the DACA program and stop approving new applications, his ruling puzzlingly permits current DACA beneficiaries to maintain their (illegal) benefits. To support this contradiction, Hanen reasoned that “[h]undreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program.”
He further stated:
Given those interests, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly. This consideration, along with the government’s assertion that it is ready and willing to try to remedy the legal defects of the DACA program indicates that equity will not be served by a complete and immediate cessation of DACA.
As a result, more than 615,000 illegal aliens will retain benefits, including work authorization, provided by the illegal program.
The ruling will undoubtedly inject additional pressure into the battle brewing on Capitol Hill, with many Democrats demanding that a mass amnesty going well beyond the DACA population be included in an infrastructure package via the budget reconciliation process. This radical push was backed DHS Secretary Alejandro Mayorkas shortly after Hanen ruled. Mayorkas urged Congress to “act swiftly to enact legislation through the reconciliation process to provide permanent protection that the American people want and Dreamers have earned.”
The budget reconciliation process, to which the filibuster does not apply, was designed to ensure that federal spending or revenue measures can be quickly enacted. Controversial, unrelated provisions such as amnesty – of which budgetary effects are “merely incidental” to policy changes – are prohibited from being included in reconciliation bills. As I have frequently noted, even if addressing immigration policy affects the budget, those fiscal effects are not “merely incidental” to sweeping policy changes that will deeply harm our nation for decades.
The Senate Parliamentarian, Elizabeth MacDonough, will soon determine whether such a provision can be included. Until then, FAIR continues to make its voice heard on Capitol Hill, urging senators in both parties to reject calls for including amnesty in the budget reconciliation process.
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