Biden Tries to Revive DACA on Appeal

February 15, 2022

IRLI shows Fifth Circuit why program should stay enjoined

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Fifth Circuit Court of Appeals in support of Texas and other states suing to end the Obama-era Deferred Action for Childhood Arrivals program (DACA). A federal district court in Texas had found the program unlawful and blocked its implementation going forward, and the administration is asking the Fifth Circuit to reverse that judgement.

In its brief on appeal, IRLI shows that DACA is unlawful in a number of respects; for example, it represents a systemic, programmatic failure to carry out the executive’s constitutional duty to take care that the nation’s laws be faithfully executed. Turning to a recent Supreme Court decision in which the Court had held that the Trump administration had not properly rescinded DACA, IRLI makes the key point that the Court, in the majority opinion written by Chief Justice Roberts, also held that DACA is a substantive rule. That holding dooms DACA, because a court must vacate substantive rules that did not go through the notice and comment process, and it is undisputed that DACA never went through that process.  

“This case remains important for a host of reasons, not the least of which is that it is Congress, not the executive, that has the constitutional authority to admit aliens or legalize illegal aliens,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In the current border crisis brought on by the executive’s refusal to perform its duty under the law, it is urgent that the Fifth Circuit forcefully reiterate that principle, and we hope it does so.”

The case is Texas v. United States, No. 21-40680 (Fifth Circuit).