Supreme Court on the horizon as federal judge declares ‘DACA is illegal’ again

A federal judge on Wednesday ruled that a new version of a federal policy that protects hundreds of thousands of immigrants who came to the U.S. as children from deportation is illegal.

U.S. District Judge Andrew Hanen sided with Texas and eight other states that sued to end the Deferred Action for Childhood Arrivals, or DACA, program. The judge’s decision is expected to be challenged in the U.S. Supreme Court, where the program’s fate has been decided twice before.

Hanen prohibited the government from approving any new applications, but allowed the program to continue for existing recipients during the likely appeals process. He said his order does not require the federal government to take any actions against DACA recipients.

The states have claimed the Obama administration did not have the authority to create the program in 2012 because it bypassed Congress. In 2021, Hanen found the program illegal, saying it had not gone through the public notice and comment periods required under the federal Administrative Procedures Act.

The Biden administration attempted to address Hanen’s concerns with a new version of DACA that went into effect in October 2022 and was subject to public comments as part of a formal rule-making process.

But the U.S. District judge, who was appointed by then-President George W. Bush in 2002, found the updated version of DACA was still illegal. He had previously said DACA was unconstitutional and it was up to Congress to pass legislation to protect people under the program, often known as “Dreamers.”

Hanen also had previously ruled the states had standing to file their lawsuit because they had been harmed by the program. The states have argued they incur hundreds of millions of dollars in health care, education, and other costs when immigrants are allowed to stay in the country illegally.

The states that sued are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.

Those defending the program the federal government, the Mexican American Legal Defense and Educational Fund, and the state of New Jersey had argued the states failed to show evidence that any of the costs they allege they have incurred have been linked to DACA recipients. They also argued Congress has given the Department of Homeland Security the legal power to set immigration enforcement policies.

Despite finding the DACA program illegal before, Hanen had kept the Obama-era program intact for those already benefiting from it. But he had ruled there could be no new applicants while appeals were pending. There were 578,680 people enrolled in DACA at the end of March, according to U.S. Citizenship and Immigration Services.

The program has faced a series of legal challenges over the years.

In 2016, the Supreme Court split 4-4 over an expanded DACA and a version of the program for parents of DACA recipients. In 2020, the high court ruled 5-4 that the Trump administration wrongly ended DACA, allowing it to remain in place.

In 2022, the 5th U.S. Circuit Court of Appeals in New Orleans upheld Hanen’s earlier ruling finding DACA illegal, but sent the case back to him to review changes made to the program by the Biden administration.

President Joe Biden and advocacy groups have urged Congress to pass permanent protections for “dreamers.” Congress has repeatedly failed to pass proposals called the DREAM Act to protect DACA recipients.