Federal judge again declares DACA illegal; issue likely to be decided by Supreme Court

While a federal judge on Wednesday declared illegal a revised version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children, he declined to order an immediate end to the program and the protections it offers to recipients.

U.S. District Judge Andrew Hanen agreed with Texas and eight other states suing to stop the Deferred Action for Childhood Arrivals, or DACA, program.

His ruling is expected to be appealed to the U.S. Supreme Court, sending the program’s fate before the nation’s justices for a third time.

“While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” Hanen wrote in his 40-page ruling.

“The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation. ... The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”

His order extends the current injunction that has barred the government from approving any new DACA applications, but has left the program intact for existing recipients during the ongoing legal review.

Hanen also declined a request by the states to order the program’s end within two years. He said his order does not require the federal government to take any actions against DACA recipients, who are widely known as “Dreamers.”

Thomas Saenz, president and general counsel of MALDEF, the Mexican American Legal Defense and Educational Fund, which is representing DACA recipients in the lawsuit, said it would ultimately be up to higher courts, including the Supreme Court, to rule on DACA’s legality and whether Texas had proved it was harmed by the program.

“Judge Hanen has consistently erred in resolving both of these issues, and today’s ruling is more of the same flawed analysis. We look forward to continuing to defend the lawful and much-needed DACA program on review in higher courts,” Saenz said.

The Biden administration also criticized the judge’s ruling.

“We are deeply disappointed in today’s DACA ruling from the District Court in Southern Texas,” White House Press Secretary Karine Jean-Pierre said in a statement Wednesday night.

“We disagree with the District Court’s conclusion that DACA is unlawful, and will continue to defend this critical policy from legal challenges,” she said. “While we do so, consistent with the court’s order, [the Homeland Security Department] will continue to process renewals for current DACA recipients and [Homeland Security] may continue to accept DACA applications.”

The Texas attorney general’s office, which represented the states in the lawsuit, and the U.S. Department of Justice, which represented the federal government, didn’t immediately return emails or calls seeking comment.

The states have argued that the Obama administration didn’t have the authority to create the program in 2012 because it circumvented Congress.

In 2021, Hanen declared the program illegal, ruling it had not been subject to public notice and comment periods required under the federal Administrative Procedures Act.

The Biden administration tried to satisfy Hanen’s concerns with a new version of DACA that took effect last October and was subject to public comments as part of a formal rule-making process.

But Hanen, who was appointed by President George W. Bush in 2002, ruled the updated version of DACA was still illegal as the it was essentially the same as the version enacted under the Obama administration. Hanen had previously said DACA was unconstitutional.

Hanen also had previously ruled that the states had standing to sue because they had been harmed by the program.

The states have claimed that they incur hundreds of millions of dollars in healthcare, education and other costs when immigrants are allowed to remain in the country under DACA. The states that have sued with Texas are Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.

Those defending the program — the federal government, MALDEF and the state of New Jersey — had argued that the states failed to present evidence that any of the costs they claim they have incurred are tied to DACA recipients. They also argued that Congress has given the Homeland Security Department the authority to set immigration enforcement policies.

There were 578,680 people enrolled in DACA at the end of March, according to U.S. Citizenship and Immigration Services.

The program has faced a roller coaster of court challenges over the years.

In 2016, the Supreme Court deadlocked 4 to 4 over an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the justices ruled 5 to 4 that the Trump administration had improperly ended DACA, and allowed it to stay in place.

In 2022, the 5th U.S. Circuit Court of Appeals in New Orleans upheld Hanen’s earlier ruling declaring DACA illegal, but sent the case back to him for review ofthe Biden administration’s changes to the program.

President Biden and advocacy groups have called on Congress to pass permanent protections for Dreamers. Congress has failed multiple times to pass proposals under the Dream Act to protect DACA recipients.

“We continue to urge Congress and President Biden to create permanent solutions for all immigrants to ensure none are left in the perilous road DACA has been on for the past decade,” Veronica Garcia, an attorney with the Immigrant Legal Resource Center, an advocacy organization, said in a statement.