The Legal Way to Help the ‘Dreamers’

DACA provided legal status and work authorization to young adults who were brought to the U.S. illegally as children. But the Fifth Circuit’s three-judge panel says the Obama Administration’s 2012 memo creating the policy exceeded its statutory power and violated the Administrative Procedure Act (APA). These aren’t close questions. Even Mr. Obama in 2011 argued that he didn’t have the authority to wave a wand and shield Dreamers from deportation.

“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case,” Mr. Obama said. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”

Yet that’s exactly what he did a year later, to energize his base before the 2012 election. The Department of Homeland Security argued that DACA was merely an exercise of “prosecutorial discretion” that created no “substantive right.” But the Fifth Circuit disagrees and identifies the fundamental constitutional problem. “There is no ‘clear congressional authorization’ for the power that DHS claims,” writes Judge

Priscilla Richman,

citing West Virginia v. EPA, the Supreme Court’s ruling this summer on the major questions doctrine.

The panel also dings DACA because it was put into effect without the notice and comment that the APA requires for substantive rules. Recall that the High Court enjoined the Trump Administration’s move to rescind DACA, saying it violated the APA because it failed to consider states’ reliance interests on the program and reasonable alternatives to ending it. Goose, gander.

In August the Biden Administration issued a final rule aiming to shore up DACA. The Fifth Circuit wisely allowed Dreamers to renew their DACA status while litigation on that continues in the district court. But the Supreme Court will likely be asked to weigh in, and the constitutional flaw remains. It would behoove the country for both parties to compromise rather than use these young people as political pawns.

Congress has debated for years whether to legalize Dreamers. DACA killed the impetus for action, as did the Supreme Court’s ruling blocking the Trump rescission. The Fifth Circuit’s ruling should reignite negotiations. Dreamers were brought here through no fault of their own, and they contribute to American life. It helps nothing to deport them to countries they don’t remember. DACA was a legal wrong, but that doesn’t change the moral and economic imperative for Congress to give Dreamers a reprieve.