Exclusive–Kris W. Kobach: DACA Is Finally Dead at Last

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On Friday afternoon, U.S. District Judge Andrew Hanen of the Southern District of Texas issued an opinion striking down President Obama’s illegal DACA (“Deferred Action for Childhood Arrivals”) executive action, which was announced more than nine years ago.  

DACA allowed virtually any illegal alien up to the age of 31 (as of June 15, 2012, when it was announced) who claimed that he entered the United States before the age of 16 to gain “deferred action” and remain in the country.  The alien also became eligible for employment authorization.  In practice, it ended up being an amnesty for more than 886,000 illegal aliens up to the age of 39 who received permission to stay in the United States, along with work authorization allowing them to compete against young Americans for the same jobs.

But DACA was illegal and unconstitutional from the beginning.  Only Congress can grant an amnesty en masse to illegal aliens.  Ten ICE agents sued to block the DACA amnesty in 2012 (I represented them).  And President Trump tried to repeal DACA, but the Supreme Court issued a perplexing decision in June of 2020 saying that the Trump Administration didn’t jump through the necessary administrative hoops to do so.

However, the Supreme Court never answered the most important question:  what if DACA was illegal from the outset?  Justice Thomas did not shy away from answering the question in his dissent.  In his words, “DHS created DACA during the Obama administration without any statutory authorization and without going through the requisite rulemaking process. As a result, the program was unlawful from its inception.”

Fortunately, the State of Texas had already filed another suit to stop DACA, and it was that long-awaited decision that was issued Friday.  Judge Hanen’s 77-page decision is a powerful ruling that goes into exacting detail as to why President Obama’s DACA amnesty was indeed unlawful from its inception.

Judge Hanen points out, first and foremost, that DACA is illegal because the Obama Administration created it in the form of a policy “directive,” rather than as a formal regulation through the Administrative Procedure Act (“APA”).  Generating an agency regulation entails a long process whereby the agency promulgates a proposed rule, providing public notice and inviting public comment, after which the agency must responding to criticism and justify the rule.  

The Obama Administration did none of that when it created DACA.  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.” 

Fortunately, Judge Hanen did not end his opinion there.  Department of Justice attorneys had indicated during the litigation of the case that the Biden DHS had plans to redo DACA as a formal administrative rule—going through the administrative process that the Obama DHS skipped.  What would happen then?

Judge Hanen provided an unequivocal answer:  DACA would still be illegal.  It violates federal law that makes DACA recipients unlawfully present in the United States, it violates federal law requiring illegal aliens to be placed into removal proceedings, and it violates federal law by creating a new path to lawful status and work authorization.  As Judge Hanen summed it up:  “Thus, all DACA applicants and recipients fall into a category for removal regardless of their mode of entry.  The DACA Memorandum prevents immigration officials from enforcing these provisions of the [Immigration and Nationality Act].”

The ruling bars Biden’s DHS from granting DACA status to any new illegal aliens.  The question of what is going to happen to the aliens who have already been granted DACA status remains pending in Judge Hanen’s court.

Although the Biden Administration will doubtless appeal the decision, Judge Hanen’s opinion stands a very good chance of surviving any appeal.  His legal reasoning is strong, and he spent a significant amount of time writing it.  But it was worth the wait.

Kris W. Kobach served as the elected secretary of state of Kansas during 2011-19.  An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 DACA amnesty.  During 2001-03, he was Attorney General Ashcroft’s chief adviser on immigration law at the Department of Justice.  His website is kriskobach.com.

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