Some were surprised when U.S. District Court Judge Andrew Hanenruled that Barack Obama’s DACA program was created illegally. I don’t think Obama was. He knew he was exceeding his authority when he created it.
On Oct. 25, 2010, when groups supporting rights for undocumented immigrants asked Obama to unilaterally implement immigration reform, he said, “I’m president, I’m not king.”
Six months later, he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case. … 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.”
Nevertheless, during the summer before he ran for a second term, he established the DACA program, which suspended deportation for roughly one million undocumented immigrants.
Then, after the drubbing his party took in the 2014 midterm elections, he expanded DACA and established the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
Opponents of DAPA and the expanded DACA program obtained a temporary injunction stopping these programs, which in 2016 was affirmed by the Supreme Court in United States v. Texas.
DHS terminated these programs pursuant to a settlement agreement before a final decision could be issued on their legality.
DACA didn’t follow the rules
The plaintiffs argued that DACA was improperly established by a memorandum without undergoing the notice and comment rule makingprocedures required by section 553 of the Administrative Procedures Act (APA).
The defendants argued that the memorandum was just a general statement of policy and therefore was not required to comply with the APA’s rulemaking requirements.
A general statement of policy just advises the public of the manner in which the agency issuing it proposes to exercise a discretionary power. It does not impose rights or obligations, and it leaves the agency and its decisionmakers free to exercise discretion.
Judge Hanen found that the DACA Memorandum required USCIS to establish processes to identify individuals who met the DACA criteria and to begin the proceedings for deferred action, and it gave DACA participants the right to request work authorization, Social Security, and Medicare.
It also imposed obligations on individual states and on the federal government.
It gives participants lawful presence, which obligates the states to spend money in various areas, including social services, education, and healthcare. In addition, the judge found, it obligates the federal government to forebear from implementing immigration enforcement proceedings.
In places, the DACA Memorandum purports to confer discretion. For instance, it instructs agencies to review applications on a case-by-case basis and exercise discretion.
But it also has mandatory language that contradicts the purported conferral of discretion. It specifies the criteria to be used in determining whether a DACA applicant is eligible, and it does not grant discretion to vary from those criteria. The Judge found this narrowly limits administrative discretion and prohibits DHS agents from granting DACA status to applicants who do not meet the prescribed criteria.
Even assuming that the DACA Memorandum leaves the agency and its decision makers with some degree of discretion, it cannot be considered a general statement of policy under the APA, according to Judge Hanen, because of the fixed criteria and the significant rights and obligations it confers.
Accordingly, the general statement exception does not apply. Judge Hanen said DHS should have complied with the rule making procedures; therefore, the DACA program has never had legal status.
