Some were surprised when U.S. District Court Judge Andrew Hanen ruled that Barack Obama’s DACA program was created illegally. I don’t think Obama was. He knew he was exceeding his authority when he created it.
On Oct. 25, 2010, when groups supporting rights for undocumented immigrants asked Obama to unilaterally implement immigration reform, he said, “I’m president, I’m not king.”
Six months later, he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case. … There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”
Nevertheless, during the summer before he ran for a second term, he established the DACA program, which suspended deportation for roughly one million undocumented immigrants.
Then, after the drubbing his party took in the 2014 midterm elections, he expanded DACA and established the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
Opponents of DAPA and the expanded DACA program obtained a temporary injunction stopping these programs, which in 2016 was affirmed by the Supreme Court in United States v. Texas.
DHS terminated these programs pursuant to a settlement agreement before a final decision could be issued on their legality.
DACA didn’t follow the rules
The plaintiffs argued that DACA was improperly established by a memorandum without undergoing the notice and comment rule making procedures required by section 553 of the Administrative Procedures Act (APA).
The defendants argued that the memorandum was just a general statement of policy and therefore was not required to comply with the APA’s rulemaking requirements.
A general statement of policy just advises the public of the manner in which the agency issuing it proposes to exercise a discretionary power. It does not impose rights or obligations, and it leaves the agency and its decisionmakers free to exercise discretion.
Judge Hanen found that the DACA Memorandum required USCIS to establish processes to identify individuals who met the DACA criteria and to begin the proceedings for deferred action, and it gave DACA participants the right to request work authorization, Social Security, and Medicare.
It also imposed obligations on individual states and on the federal government.
It gives participants lawful presence, which obligates the states to spend money in various areas, including social services, education, and healthcare. In addition, the judge found, it obligates the federal government to forebear from implementing immigration enforcement proceedings.
In places, the DACA Memorandum purports to confer discretion. For instance, it instructs agencies to review applications on a case-by-case basis and exercise discretion.
But it also has mandatory language that contradicts the purported conferral of discretion. It specifies the criteria to be used in determining whether a DACA applicant is eligible, and it does not grant discretion to vary from those criteria. The Judge found this narrowly limits administrative discretion and prohibits DHS agents from granting DACA status to applicants who do not meet the prescribed criteria.
Even assuming that the DACA Memorandum leaves the agency and its decision makers with some degree of discretion, it cannot be considered a general statement of policy under the APA, according to Judge Hanen, because of the fixed criteria and the significant rights and obligations it confers.
Accordingly, the general statement exception does not apply. Judge Hanen said DHS should have complied with the rule making procedures; therefore, the DACA program has never had legal status.
Can a DACA program be lawful if APA procedures are followed?
The plaintiffs argued that the establishment of DACA exceeded Obama’s authority because it violated the comprehensive immigration scheme that Congress enacted.
The defendants argued that this authority is inherent in DHS’s prosecutorial discretion to determine how to allocate its scarce resources to best enforce the nation’s immigration laws.
While Congress has granted some discretionary authority to DHS, it does not include the power to institute a program that gives deferred action, lawful presence, work authorization, and other benefits to a million people who are in the country illegally.
Judge Hanen noted that prosecutorial discretion is broad, but it is not unfettered. Declining to prosecute does not change an alien’s presence which is deemed to be unlawful by Congress into a lawful one — or confer eligibility for otherwise unavailable benefits.
Prosecutorial discretion applies to enforcement decisions, not benefit decisions. It is a decision on whether to enforce, or not to enforce, the law.
Therefore, Judge Hanen found that the creation of a DACA program cannot be characterized as authorized by DHS’s inherent authority to exercise prosecutorial discretion.
Judge Hanen vacated the DACA Memorandum and the DACA program it created, but he did not require his order to apply immediately to current DACA participants. He just enjoined DHS from approving any new DACA applications.
What now?
Will the Democrats pass a DREAM Act to save the DACA participants from the uncertainty Judge Hanen’s decision has caused?
They have been introducing DREAM Acts since 2001. But how serious are they?
They could have passed a DREAM Act when Obama was president. From January 2009 to January 2011, they had a large majority in the House, and until Scott Brown’s special election in 2010, they had enough votes in the Senate to stop a Republican filibuster.
And they had another chance to help the DACA participants when President Donald Trump offered to support a legalization program for 1.8 million DACA participants. Trump’s offer had an unacceptable condition, but a compromise could have been possible.
In any case, although Judge Hanen has prohibited the approval of new DACA applications, he has not taken away the benefits of the DACA program from its current participants. They are still eligible for work authorization and are not in danger of being deported.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.