Judge Rules DACA Is Illegal, Says Biden Admin Cannot ‘Usurp’ Congressional Power
WASHINGTON, DC - SEPTEMBER 5: Demonstrators sit on Pennsylvania Avenue during a demonstration in response to the Trump Administration's announcement that it would end the Deferred Action for Childhood Arrivals (DACA) program on September 5, 2017 in Washington, DC. DACA, an immigration policy passed by former President Barack Obama, allows certain undocumented immigrants who arrived in the United States as minors to receive renewable two-year deferred action from deportation and eligibility fork a work permit.
Photo by Zach Gibson/Getty Images.

A federal judge in Texas ruled against the Deferred Action for Childhood Arrivals (DACA) program on Wednesday, saying that the policy, which prevents people who were brought illegally into the U.S. as children from being deported, was unconstitutional. 

In his 40-page opinion for the Southern District of Texas, federal Judge Andrew Hanen ruled that the executive branch cannot “usurp” congressional authority. More than half a million illegal immigrants have been shielded from deportation because of the Obama-era rule, which was later adopted and amended by the Biden administration. 

“While sympathetic to the predicament of DACA recipients and their families, this court has expressed concerns about the legality of the program for some time. The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, decided not to pass DACA-like legislation,” Hanen wrote.

“Congress’ alleged failure to pass, or, stated differently, its decision not to enact legislation, does not empower the Executive Branch to ‘legislate’ on its own — especially when that ‘legislation’ is contrary to actual existing legislation. The Executive Branch cannot usurp the power bestowed on Congress — even to fill a void,” the judge added. 

Hanen’s ruling came after nine states, including Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and Mississippi, sued to stop DACA, saying that it was unlawfully implemented by both the Obama and Biden administrations. When announcing the complaint in December, Texas Attorney General Ken Paxton said that the Biden administration was attempting to implement “mass amnesty” through executive authority. 

The federal government, New Jersey, and the Mexican American Legal Defense and Education Fund (MALDEF) have argued for DACA. 

The court order adds that the decision does not require the Department of Homeland Security or the Justice Department to “take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that would otherwise not be taken.”


The fate of DACA will likely be determined by the Supreme Court, which previously ruled 5-4 in 2020 that the Trump administration could not end the program. 

The Biden administration said it was disappointed by the decision, adding that it would push Congress to pass DACA-style legislation. 

“During this Administration, hundreds of thousands of DACA recipients have been able to live and work lawfully in our country without fear of deportation,” a statement from the White House said. “We are committed to protecting all the Dreamers who have throughout their lives enriched our communities and our country, and we continue to call on Congress to provide permanent protection to the hundreds of thousands of Dreamers in the United States.”

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