The chief continuing political controversy of the last decade has concerned immigration, and the status of the “Dreamers” and their parents has led the way. That replacement of statutory immigration law by executive action, promulgated by President Obama for the Dreamers in 2012, has now been endorsed by President Biden. It has been the subject of two Supreme Court decisions. Last month, a federal district court in Texas fired the latest salvo by issuing an injunction freezing Obama’s 2012 executive edict, the Deferred Action for Childhood Arrivals (DACA). The court concluded that it was not and could not possibly be justified as a permissible act of the executive branch.

In June 2012, President Obama had the Department of Homeland Security (DHS) issue the DACA Memorandum as a matter of “prosecutorial discretion” allowing the children of illegally-entered immigrant parents to remain in the country in violation of civil and criminal provisions of the Immigration and Nationality Act (INA). These were, Obama called them, “Dreamers.” “They are American in their heart . . . Put yourself in their shoes.” Proclaimed at the beginning of the Congressional and Presidential elections cycle of that year and relentlessly promoted by the media ever since, DACA was emotionally and politically astute in its substance and timing. These are just innocent kids who are not responsible for their parents’ violations of the immigrant laws! Both houses of Congress at the time were controlled by Republicans, and they did nothing. Who wants to be against kids? And as federal district judge Andrew S. Hanen has observed in his new decision considered below, DACA “garnered much national media attention and its recipients evoke the sympathy of the nation.”

Obama made no bones about the fact that DACA was a violation of the constitutional separation of power. He was upfront and even scornful in asserting that he was acting “in the absence of any immigration action from Congress,” which Republicans had “blocked.” Likewise, President Biden. In response to the July decision of the federal district court, he said that the “Obama-Biden Administration created” DACA.

The DACA Memorandum was not merely a non-prosecution forbearance of enforcing the law against the children of parents who had illegally entered the country. It also provided Dreamers positive rights and benefits, including lawful residency and “work authorization” under state and federal law.

Two years after promulgating DACA, the Obama administration, with its Dreamers’ victory in hand, then unilaterally added to DACA immunity for the illegally-entered parents of the Dreamers, the Deferred Action for Parents of Americans (DAPA). District court judge Hanen notes that “As of 2018, 814,000 had applied for and received ‘lawful presence’ via DACA,” and that DACA and DAPA together could have established “lawful presence” for “5.8 million (or over 50% of the estimated 11.3 illegal aliens in the country).”

The End of DAPA

Until this year, DACA was never challenged in the federal courts, but 26 states, led by Texas, sued to have DAPA declared an unconstitutional violation of the separation of powers. Success was achieved with a nationwide injunction in the district court and in the Fifth Circuit’s decision in Texas v. United States. In its 2015 ruling, the Circuit made preliminary rulings that the case was likely to succeed in proving that the states had standing to sue over DAPA and that DACA was an “arbitrary and capricious” violation of the Administrative Procedures Act (APA), which prescribes the lawful policies and procedures of the executive branch, including when public notice and the solicitation of comments from the public is required. The Circuit found that public “notice and comment” should have been done for DAPA and that DAPA had overreached the APA’s allowance of “executive discretion.” The Circuit also concluded that its rulings on the APA were sufficient and that it need not issue a constitutional ruling because the APA violated the Take Care Clause (Art. II, Sec. 3)—that “the laws be faithfully executed” by the president.

The Circuit defined DAPA as an act of the executive branch of “vast economic and political significance,” one that was “not authorized by statute” either under the APA or the INA. The Obama administration appealed the ruling to the Supreme Court, which in 2016, upon the death of Justice Scalia, rejected the case on a 4-4 vote, thereby upholding the Fifth Circuit’s ruling overturning the program. The Trump administration in 2017 then formally withdrew the 2014 DAPA Memorandum.

DACA is Saved by Chief Justice Roberts

Then, in June of 2017, the Trump administration issued a memorandum rescinding the original 2012 DACA Memorandum itself. Whereupon, in federal district courts in California, New York, and Washington D.C., a variety of plaintiffs, including the states of California and other states as well as the NAACP and universities, challenged the rescission of DACA as a violation of the APA—yes, the same provisions of the same federal statute governing executive actions that the Fifth Circuit had used to overturn DAPA was now being used to defend DACA. The plaintiffs also alleged discrimination against Latinos under the Equal Protection Clause. All three courts ruled against the federal government and two of the courts vindicated the Equal Protection claim.

Last year, in DHS v. Regents of California, the Supreme Court, by a 5-4 majority with Chief Justice Roberts the deciding vote, held that the rescission of DACA had been an “arbitrary and capricious” violation of APA because the Trump administration had not published formal “notice” and solicited “public comment” about the measure.

In deciding that the Rescission Memorandum was judicially reviewable, Roberts, writing for the Court, in so many words effectively and ironically undermined the 2012 DACA Memorandum itself whose “Subject” on the first page was “Exercising Prosecutorial Discretion.” Roberts held that the DACA Memorandum was not a discretionary “non-enforcement” policy but had “created a program for conferring affirmative immigration relief.” He then faulted DHS for its failure to balance three factors: DACA’s forbearance of removal of the Dreamers from the country, the specific benefits provided by the program, and the “reliance interests” of those DACA beneficiaries already in the program. DHS had been “arbitrary and capricious”—the same criticism under the language of APA that the Fifth Circuit had used in overturning DAPA.

Speaking for three of the dissenters, including himself, Justice Thomas based his dissent on the fundamental point that since DACA was unlawful, the rescission of DACA was more than correct. DACA was “an invalid legislative rule” issued by the executive branch and was “not supported by the APA.” Further, it was “absurd” for the majority to have subjected DACA’s rescission to an exacting analysis “regarding benefits and forbearance” when “no such detailed discussion accompanied DACA’s issuance.” It was DACA, not its rescission, that should have followed the APA’s extended notice and comment rules. And, in fact, the rescission “did provide a sufficient explanation for its action.” DACA was ultra vires, illegal in itself, in its initiation and administration.

He noted that over the years Congress had specifically considered “more than two-dozen attempts” to “grant legal status to aliens who were brought to this country as children.” It was not up to the executive branch by itself to create such a status via DACA. In addition, extant immigration laws, Thomas added, already provided “numerous ways to obtain lawful presence, both temporary and permanent.”

 DACA is Overturned

Now, federal district judge Hanen–taking into account Regents and the Fifth Circuit in Texas v. United States— has ruled that DACA violates the APA. In a suit filed by nine states led by Texas, he issued an injunction last month ordering the DHS to retract the DACA memorandum and to cease its approval of new applicants.

Judge Hanen began by ruling that since the Supreme Court in Regents held that DACA “was a program for conferring affirmative immigration relief,” DACA in 2012 had been at least an “informal rule” requiring public notice and the solicitation of comments from the public. Since DACA conferred “rights” and “benefits,” it was not, as the Biden administration argued, a “general statement of policy.” On the contrary, it had been “immediately applied to all who met the criteria.” 

As for the DACA Memorndum’s self-identification as “prosecutorial discretion,” Hanen asserted that DACA is written in “mandatory language.” Furthermore, Hanen noted that the Fifth Circuit in Texas v. US had emphasized that DHS “could not find one example of anyone who had met all the requirements in the DACA Memorandum who was turned down for a discretionary reason.” Likewise, in the present case, Hanen said, DHS conceded that no DACA applicant has been “denied based solely on discretion.” Hanen concluded that he need not issue a constitutional ruling under the Take Care Clause because of the comprehensive violation of the APA.

Hanen added that the DACA decision that he was handing down was in agreement with the Fifth Circuit’s DAPA decision because the Fifth Circuit had relied on “DAPA’s incompatibility with the INA’s provision for lawful presence and work authorization,” just as Hanen was doing in his own decision. The Biden administration has appealed.

Thus, under the obscure (to the public) Administrative Procedure Act, but not directly under the Constitution, three significant federal court rulings, including one by the Supreme Court, have made the obvious and common-sense finding that DACA was a unilateral creation of the executive branch by President Obama and designed as a substitute for legislation. DACA and DAPA were considered by the Supreme Court in 4-4 and 5-4 decisions. It remains to be seen whether the substitution of Justice Barrett for the late Justice Ginsburg will affect the Supreme Court’s perspective.

The questions surrounding the APA extend well beyond DACA and DAPA. The extent of executive “discretion” under the APA is the fundamental issue in the current litigation concerning the nationwide ban on the eviction of renters for non-payment of rent, for instance. With an activist executive branch, the APA may turn out to be the most consequential determinant of government power of our time.