The U.S. Court of Appeals for the Fifth Circuit dealt a blow to President Joe Biden’s administration and ruled on Wednesday that the Deferred Action for Childhood Arrivals (DACA) program was unlawful.
The Fifth Circuit court held that DACA was unlawfully enacted because it did not undergo the notice and comment procedure required by the Administrative Procedure Act (APA).
“DACA created a detailed, streamlined process for granting enormously significant, predefined benefits to over 800,000 people,” Fifth Circuit Chief Judge Priscilla Richman wrote. “This constitutes a substantive rule. Because DACA did not undergo notice and comment, it violates the procedural requirements of the APA.”
Although the Fifth Circuit determined DACA was unlawful, the three-judge panel remanded the case back to U.S. District Judge Andrew Hanen’s court in light of a recently enacted Biden administration regulation.
“A district court is in the best position to review the administrative record in the rulemaking proceeding,” Richman said.
The new Biden regulation on DACA issued in August will take effect on October 31. Biden’s DACA regulation is largely similar to former President Barack Obama’s 2012 memo that created DACA, except Biden’s regulation was subject to public comments as part of the rulemaking process.
Republican challengers say that DACA is illegal even with notice and comment because it rewrites immigration law without Congress, which would be what is called a substantive violation of the APA. So it is possible that on remand, the new Biden version of DACA will also be invalidated as illegal.
In July 2021, Judge Hanen sided with conservative states who challenged DACA and ruled that Obama unlawfully implemented the program. He will now likewise examine the new program before it is scheduled to take effect.
Following Judge Hanen’s ruling, the New Orleans-based Fifth Circuit allowed existing DACA recipients to continue receiving federal benefits while Hanen is still reviewing the new regulations but prohibited the program from accepting new applicants.
The three-judge panel – which includes Judge James Ho, who as an outspoken textualist and originalist is a favorite among constitutional conservatives — explained that they were not able to render a final definitive judgment because DHS’s administrative record was not included in the package sent up to the appeals court for review, and instructed Hanen to examine that administrative record so that he could render such a final opinion as soon as possible. Noting that the new Biden regulations are scheduled to take effect October 31, the court instructed that “those issues of law should be resolved sooner rather than later to move this case forward as expeditiously as possible,” giving Hanen enough time to block the new program with an injunction, and then for the Fifth Circuit to take up a comprehensive review for a final disposition.
The case is Texas v. United States, No. 21-40680 in the U.S. Court of Appeals for the Fifth Circuit.