Understanding DACA: DACA in Court

| November 14, 2017 | 0 Comments

With DACA rescinded, the question of its constitutionality is back in the public arena. Passionate debate is exploding from every side, with ideas about its morality, efficacy, legality, and every other possible angle colliding at top speed.

Understanding the viewpoint of the more constitutionally minded is important to an informed conversation. Much of the argument can be seen through the lens of DACA’s appearance in the court system, and how it turned out: as per the title, DACA in court.

Now, to make things extra confusing, the idea of DACA in court is actually a misunderstanding; it never made it there at all. It’s really not an issue of DACA itself in court, but DAPA and the 2014 DACA expansion – both of which you haven’t heard of because they were shut down.

As always, I must provide a disclaimer:  I have no official legal training of any sort. All I do is read, interpret, and describe. I welcome any and all criticism, disagreement, and challenging concerning all of my writing – disagreement is the foundation of discourse, and discourse is what builds common ground.


A November 20, 2014 memorandum written by then-Secretary of Homeland Security Jeh Charles Johnson introduced policy recommendations similar to those set out in DACA. The changes introduced within it were twofold: a small expansion of the original DACA as well as the introduction of an entirely new initiative. The DACA expansion changed some details of the original memorandum – the period of deferred action and the age cap – but didn’t really make a difference of note.

The new initiative, however, was more groundbreaking. It came to be called DAPA, or Deferred Action for Parents of Americans. It was identical to DACA in terms of the type of amnesty it offered – deferred action through prosecutorial discretion – but applied to a different population: undocumented immigrants whose children were either legal citizens or legal permanent residents. The memo is written in accessible language and is well worth a read, especially in terms of the justifications Secretary Johnson gives for his action – if you need an extra incentive, Johnson’s signature is hilariously scribbly and right at the top of the first page.

In response to this memo, 26 US states* filed for a preliminary injunction. A preliminary injunction does not entail the destruction of some sort of action; rather, it puts a stop on something moving forward until it can be finally ruled on in a higher court. The states asserted the following: that Obama had orchestrated DAPA because the DREAM Act had failed out of pure political motivation, and also that DAPA was a unilateral change of the law that the executive branch was not, constitutionally, allowed to effect. Much of this argument hinged on the “Take Care” clause of the constitution, which says simply that the executive must “take care that the laws be faithfully executed”. The executive has no power to change the law, but the power – and responsibility – to execute it well.

The case came before Judge Andrew Hanen of the United States District Court for the Southern District of Texas. His job was to determine whether a preliminary injunction was justified. In the most basic sense, he had to answer three questions. The final question is arguably the most important, but much of Judge Hanen’s ruling is devoted to the first two.

  1. Do the states have legal standing to bring the case?

Proving legal standing is an issue of proving the states’ right to bring a case against the federal government at all. In order to do this, they had to prove that DAPA would cause them real harm. In legalese, this harm ought to be a “concrete and particularized injury” that is directly caused by the contested action – in this case, DAPA – and that would be directly relieved by an injunction. While 26 states were involved in bringing the case, harm brought against only one of them would serve this purpose. In this instance, the harm fell on Texas. Texas proved to Judge Hanen that it would suffer immediate economic harm because DAPA recipients would be eligible for driver’s licenses, and having such a massive rush would be a serious strain on the state’s budget.

  1. Is DAPA even subject to judicial review?

Judicial review is an argument about checks and balances: whether the judicial branch has the legal ability to make a judgment on a particular executive matter at all. Hanen described in his ruling a rich history of court precedents that suggested he would not be able to do so. This, however, depended on DAPA really only meaning that the Department of Homeland Security was choosing not to enforce certain parts of the law in a discretionary fashion. However, and controversially, Hanen asserted that DAPA was not merely a lack of enforcement (an inaction) but a substantive rule (an affirmative and concrete action). If you remember from the discussion of DACA, and knowing that DAPA is justified in essentially the same way, this is a tough argument to make. The substance of DACA and DAPA are such that they only, technically, suggest prosecutorial discretion.

In Hanen’s justification for his finding, he made an assumption that rolling out DAPA would occur in a similar way to DACA – not an unreasonable assumption, given how similarly the two were announced and the references to DACA contained in DAPA. His writing reveals what may have been a fatal mistake in the rollout of DACA. The language of the DHS website went further than the memo itself, saying (as quoted by Hanen):

“You [DACA recipients] are considered to be lawfully present in the United States.”

Now, however much DACA may have provided an effective sort of lawful presence – however much it allowed people to live without fear, and out in the open – it did not and could not have changed the law about their legal status. The phrase “you are considered to be” isn’t legally binding enough to be truly damning for the DHS, but it’s still a bold statement for a department trying to toe a constitutional line.

Further, Hanen quoted a statement by President Obama on November 25, 2014:

“I just took an action to change the law.”

This was a statement made during a press conference where President Obama was under considerable pressure. It was not part of a written speech, nor an official statement: nonetheless, the phrase he used was both inaccurate and very unconstitutional-sounding. Anything that a president says is immensely quotable and subject to immense scrutiny, as it is in Hanen’s ruling. The literal substance of DAPA did not change the law, but Obama’s phrasing represented an overstep that, in Hanen’s opinion, was very much able to be judicially questioned.

  1. Is the substance of DAPA legal or illegal?

The question of whether DAPA’s actual substance was legal or illegal lay within the question of whether it constituted non-enforcement or a real change in status. Again, much of Hanen’s argument came from the precedent set by how DACA was implemented, not the language of the memorandum itself. DACA’s implementation included the ability of this new effective “class” of immigrants to register for Social Security cards and to be eligible for benefits like, yes, driver’s licenses. Hanen ruled that because these new benefits were able to be awarded, DAPA overstepped the boundaries of a simple non-enforcement, and it was a more substantive change: that by coming to close to being a legislative change, DAPA overstepped what the executive branch was able to do.

To quote Hanen directly:

 “The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even non- enforcement of this nation’s immigration scheme… this temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAP A Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA the resources of the DHS. It does not enjoin the Secretary’s ability to set priorities for the DHS.”


And so, in a Texas courthouse on February 16, 2015, DAPA was killed. This wasn’t, of course, a ruling on DACA itself; however, the extent to which Hanen pulled from DACA’s rollout proved a criticism of it as well.

This ruling went on to the Supreme Court after Antonin Scalia’s death, at a time when there were only 8 justices and a tie was possible. This is exactly what happened: an even split on the Supreme Court level that left many questions unanswered, but allowed the preliminary injunction to continue. Still technically preliminary but with nowhere else to go, the injunction remained, preventing DAPA’s rollout.


The question now comes to us to determine what we believe about DACA and DAPA. Looking through all of Hanen’s points, it is important for all of us to consider where we may find his logic sound and where we may find it faulty. Separating the moral question of DACA’s substance from the technical question of its viability is important for everyone, no matter how passionate our opinions. What do you think?


*Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Michigan, Mississippi, Maine, North Carolina, Idaho, Tennessee, and Nevada


United States Constitution: constitutionus.com

Obama’s “I just took an action to change the law”: https://www.washingtonpost.com/video/politics/obama-i-just-took-action-to-change-the-law/2016/01/22/62be1cfe-c0df-11e5-98c8-7fab78677d51_video.html?utm_term=.cab2909c80a4

Supreme Court ruling: https://www.supremecourt.gov/opinions/15pdf/15-674_jhlo.pdf

DAPA/DACA expansion memorandum: https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf

Judge Andrew Hanen’s ruling: https://assets.documentcloud.org/documents/1668197/hanen-opinion.pdf


photo credit: mollyktadams Los Angeles March for Immigrant Rights via photopin (license)

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Lolo Serrano

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