(The Center Square) – After the Fifth U.S. Circuit Court of Appeals heard oral arguments in a lawsuit challenging the Obama-era Deferred Action for Childhood Arrivals (DACA) program, and before it ruled it unconstitutional, the Biden administration promulgated a new rule essentially implementing a 2.0 version, which nine states are now asking the court to also rule unconstitutional.
Texas Attorney General Ken Paxton led a coalition of nine states challenging another attempt by the Biden administration to extend DACA, a program both a district and appeals court have ruled is illegal. Joining Paxton are the attorneys general of Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.
“The Biden Administration is once again attempting to ignore the rule of law by abusing executive authority to implement its own version of mass amnesty,” Paxton said. “But the fundamental issues with Obama’s DACA program are present in the Biden rule, and this complaint will move us one step closer to ending DACA in its totality.”
The AG’s Dec. 16 filing with the U.S. District Court for the Southern District of Texas Brownsville Division points out that the Department of Homeland Security argued the Obama-2012 DACA memorandum, over which litigation has ensued for years, was immaterial because it issued a new rule in August. It also asked the Fifth Circuit to review it, which it declined to do. The Fifth Circuit ordered the District Court to determine what “material differences” existed between the 2022 and 2012 rules.
The AGs argue there are none. DHS also admitted as much in an Aug. 24 news release in which it stated the final rule “preserves the basic features of DACA that plaintiffs contend – and the district court has already held – exceed DHS’s statutory authority.”
In a supplemental brief filed with the court, DHS also conceded to the Fifth Circuit that the district court vacated the 2012 DACA memorandum on substantiative grounds and that “the outcome in the district court [regarding the validity of the final rule] is certain” due to the lack of any material differences between the 2012 and 2022 versions.
Former President Barack Obama created DACA by executive order to allow “certain illegal aliens to stay in the United States, gain lawful employment, and receive taxpayer-funded benefits such as Social Security and Medicare,” Paxton said. He’s consistently challenged the program in court and won.
The AGs argue the states are “entitled to full relief against the implementation of the unlawful Final Rule” and the court should rule that it be “vacated, declared unlawful and unconstitutional, and its implementation permanently and completely enjoined.”
They also argue the federal government should be “prevented from issuing or renewing any DACA permits.”
Last July, U.S. District Judge Andrew Hanen ruled DACA is unconstitutional because immigration law and oversight of deportation is established by Congress, not by a federal agency secretary in the executive branch.
In October, Chief Judge Priscilla Richman of the 5th Circuit of Appeals lauded Hanen’s ruling, arguing, “The district court’s excellent opinion correctly identified fundamental substantive defects in the program. The DACA memorandum contradicts significant parts of the [Immigration and Naturalization Act].
“DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits. Congress determined which aliens can receive these benefits, and it did not include DACA recipients among them.”
She concluded that the 2012 DACA Memorandum “contravenes comprehensive statutory schemes for removal, allocation of lawful presence, and allocation of work authorization.”
Hanen’s injunction only applies to preventing the federal government from granting DACA status to new applicants. It allows those who received DACA status before July 16, 2021, to apply to have their temporary status renewed and remain in the U.S.
According to a report by the Center for American Progress, since 2012, over 825,000 children, at an average age of 6, were brought to the U.S. illegally, enrolled in DACA and received temporary relief from being deported. Since then, DACA recipients have had over 250,000 children born in the U.S., the center reports.
“Stripping recipients of protections would have potentially disastrous impacts on them and their families,” the center argues. It also maintains the majority are working and contributing members of society.
Litigation continues as a record 2.7 million foreign nationals were apprehended by CBP agents in fiscal 2022 and as a record 50,000 people are now being apprehended a week at the southern border by Border Patrol agents.
A surge at the southern border is expected once the public health authority Title 42 ends this week and in response to Biden administration policies, with an estimated 18,000 people arriving every day.