A three-judge panel of the Fifth Circuit Court of Appeals has ruled that the Deferred Action on Childhood Arrivals (DACA) program established by the Obama administration is illegal. The panel, composed of Judges Priscilla Richman (G. W. Bush), Kurt Engelhardt, and James Ho (both Trump appointees), characterized the program as “manifestly contrary” to federal immigration law. The decision keeps in place an injunction of further enrollment in DACA that was imposed by federal district judge Andrew Hanen last year (Surprise Court Ruling Lands a Major Blow Against Joe Biden and Illegal Immigration Advocates); that was the second time Hanen had ruled DACA was illegal (Federal Judge Says DACA Is Illegal But Somehow the New York Times Sees That as a Victory)
The decision did not outright demolish DACA but sent the case back to Judge Hanen to address the fixes that the Biden immigration bureaucracy has crafted.
DACA started out as a 2012 memorandum signed by Obama DHS secretary Janet Napolitano. It was never an executive order. It never went through the rule-making process required by the Administrative Procedure Act. It has never been enacted into law by Congress. Ordinarily, any memo by a cabinet secretary ceases to have validity when they leave office, not so with DACA. When President Trump’s DHS secretary rescinded the DACA memo based on the advice of the Attorney General of the United States, the Supreme Court held, in a 5-4 vote (guess how the Chief Justice voted), that the Trump administration was required to follow the Administrative Procedure Act to withdraw a memo that was never subjected to that act, see The Supreme Court Rules Trump Can’t End the Illegal DACA Program Because Nothing Matters Anymore.
As this current court action was working its way forward, the Biden DHS engaged in the rule-making process. That rule will take effect on October 31, and the validity of that rule is what the Fifth Circuit has asked Judge Hanen to sort out.
The irony here is that as much as the left, particularly the “immigration advocates,” bleat about it, this decision was a godsend. This decision lets them paint the GOP governors and attorneys general involved in the case as xenophobes. All of the judges involved in the case are GOP appointees; Hanen is also a G. W. Bush selection. It lets them generate fear and distrust of the GOP in the Hispanic community just as that community is making a tectonic shift to the right. The left looks at DACA in much the same way that a lot of GOP establishment figures looked at right-to-life. They didn’t want abortion to end because it was a potent fund-raising and organizing tool. Likewise, the left doesn’t want to fix DACA; the fact that they haven’t tried despite owning the House, Senate, and White House for two years and did nothing proves the point. They want the issue. They want the political club. They want the cash it raises.
It is hard to see how a DHS rule will fix the faults Hanen, and the Fifth Circuit found with DACA. We’ll get the answer while the 2024 campaign is in full swing.