What To Expect As 5th Circ. Prepares To Hear DACA Clash

Law360 (May 27, 2022, 8:22 PM EDT) -- The Fifth Circuit on Friday scheduled long-awaited oral arguments on the Biden administration's attempt to salvage former President Barack Obama's hallmark Deferred Action for Childhood Arrivals program, which will see federal and state governments clashing on the breadth of federal immigration power.

With oral arguments slated for July 6, Law360 takes a look at what's happened thus far and what could happen in and outside the courts.

How did we get here?

In May 2018, Texas and other largely Republican states took the federal government to court over DACA. The program provides deportation relief and work permits for hundreds of thousands of undocumented immigrants who were illegally brought to the U.S. as children and are widely referred to as Dreamers.

The states specifically argued that Obama had exceeded his executive authority when he enacted the program through executive order, and alleged that the overreach had forced them to bear the financial burdens of a larger immigrant population.

The case went before U.S. District Judge Andrew Hanen in Texas, who had struck down an expanded version of DACA in 2015, alongside a sister relief program for certain undocumented parents. In July 2021, Judge Hanen agreed with the states that DACA was illegally implemented and barred U.S. Department of Homeland Security from approving new DACA requests.

The administration of President Joe Biden has asked the Fifth Circuit to overturn the ruling.

What are they likely to argue?

Though oral arguments are more than a month away, the Biden administration and the Texas-led coalition have already previewed the claims that they'll be building upon in briefs to the appeals court.

In its December 2021 appellant brief, the administration argued that DACA was a "straightforward exercise" of federal authority to administer and enforce immigration law, pointing out that the U.S. has implemented more than 20 other deferred action programs similar to DACA since the 1970s. In creating the relief program, the U.S. Department of Homeland Security had invoked its broad prosecutorial discretion to prioritize certain individuals for immigration enforcement, by deferring removal for others, the administration said.

While the administration discussed the legality of the program itself, a group of DACA beneficiaries, who intervened in the case early on, separately argued that Judge Hanen should have dismissed the case on jurisdictional grounds before he ever reached the merits. The states can't prove they have been financially harmed by DACA, they said.

The states' coalition, in their own February appellee brief, argued otherwise, telling the Fifth Circuit that the relief program has cost them the education and health care expenses for DACA beneficiaries.

They further backed Judge Hanen's conclusions that the program was substantially flawed. The Immigration and Nationality Act outlines a "comprehensive scheme" for who is removable and who can obtain lawful presence and work authorization, which DACA subverts, the states argued.

Lurking in the background of the DACA case is the earlier litigation that prevented Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, from ever going into effect. Judge Hanen had questioned the legality of that program, which would have benefited roughly 4 million unauthorized immigrants with U.S. citizen children, and issued an injunction order tying it up. The Fifth Circuit declined to lift Judge Hanen's block and former President Donald Trump formally axed the program years later.

The states suing over DACA have argued that the Fifth Circuit should rely on its prior DAPA ruling when examining the DACA program. 

"DACA and DAPA are identical in every material respect," they said.

Regardless of how the appeals court rules, its decision will almost certainly tee up a fight in the U.S. Supreme Court, as no party is likely to leave an adverse ruling uncontested.

The last time the Supreme Court had considered the relief program had been while reviewing Trump's effort to unwind DACA. A slim majority of justices ultimately found the attempted rescission arbitrary and capricious. However, the makeup of the high court has since shifted, with conservative justices now holding a 6-3 supermajority. Moreover, the Texas suit cuts at the heart of the DACA program — whether it was even legal.

What's happening outside the courts?

Separately, the Biden administration has attempted to fix issues with DACA's foundations through the notice-and-comment rulemaking process, unveiling a proposed policy that would "fortify and preserve" the relief program. The administration has sought to pause the Fifth Circuit case while it irons out a final rule, which would supersede the original 2012 rulemaking, but the Fifth Circuit declined the request.

There is also the possibility that Congress could moot the entire case with legislation. In fact, Judge Hanen had questioned whether he should delay his ruling for congressional action. "I don't think we should hold our breath," a Texas attorney answered. Those questions came two months into Biden's presidency, when Democrats, who controlled both chambers of Congress, were emboldened to pursue ambitious immigration legislation, including permanent status for Dreamers.

Those attempts, however, have stalled in the Senate, where Democrats hold a razor-thin majority. Lawmakers have since attempted to use funding legislation, which can be passed with a simple majority vote, to provide citizenship to several groups of undocumented immigrants. That effort has also foundered.

However, Congress is still facing pressure to provide relief for Dreamers. And those calls are coming from across the political spectrum, with groups affiliated with the conservative mega-donor Charles Koch rallying with faith leaders and higher education groups to demand a citizenship pathway for Dreamers.

—Additional reporting by Mike LaSusa, Grace Dixon and Michelle Casady. Editing by Robert Rudinger.

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Case Information

Case Title

State of Texas v. USA

Case Number



Appellate - 5th Circuit

Nature of Suit

2899 Other Statutes

Date Filed

September 16, 2021

Government Agencies

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