WASHINGTON — The DACA program protecting from deportation hundreds of thousands of “Dreamers” who came to the U.S. as children has suffered a major blow, after a federal judge ruled that it was implemented unconstitutionally.
U.S. District Judge Andrew Hanen of Houston issued his ruling Friday in a suit brought by Republican-led states over the Deferred Action for Childhood Arrivals program, which was implemented by the Obama administration on behalf of almost 650,000 Dreamers fighting to stay in the country.
“Although Congress may someday enact such a Dream Act, until it does, its continued failure to pass bills coextensive with the DACA population evinces a rejection of this policy,” Hanen said in a 77-page decision, which noted widespread sympathy for Dreamers. “As much as this court might agree with these sentiments, and as popular as this program might be, the proper origination point for DACA was, and is, Congress.”
Hanen said it would be too disruptive to the lives of Dreamers currently participating in the program to end it immediately. He ordered the U.S. Department of Homeland Security to continue renewing permits for current enrollees and to not reject any renewals because of his order, while he gives Congress and the administration time to figure out how to cure the legal defects that undermined the program.
Although none of the youngsters is at immediate risk of either deportation or losing work authorization, the judge effectively said rescuing Dreamers is a job for Congress and the Biden administration, which have failed so far to reach agreement on what to do with them. The legal challenge moves next to the conservative Fifth Circuit in New Orleans, which now includes six judges appointed by former president Donald Trump.
Hanen’s decision ultimately sets the case back on track to the U.S. Supreme Court, which ruled in June 2020 that Trump couldn’t arbitrarily end DACA without following federal rule-making procedures and providing a good explanation. The Texas challenge asked the same legal question in reverse, whether former president Barack Obama violated federal procedures when he implemented DACA without congressional approval in 2012.
Hanen ruled Obama skipped the same required rule-making steps as Trump. But the judge indicated DACA might yet be saved if the Biden administration gave the public time to comment on a new version of DACA before a reconstituted program is put into place.
As one of his first acts, President Joe Biden signed an executive order for the Homeland Security secretary to “preserve and fortify” DACA, and the agency says it will undergo the formal rule-making process Texas claims Obama illegally skipped. The U.S. House of Representatives has also passed a bill to give all DACA recipients lawful permanent residency, and a bipartisan companion bill that protects Dreamers is under consideration in the Senate.
