In a major blow for open-borders advocates, a federal appeals court ruled on Wednesday that the controversial amnesty program Deferred Action for Childhood Arrivals (DACA) is indeed illegal, thus leaving the program’s future in doubt.
NPR reports that the ruling by the 5th U.S. Circuit Court of Appeals ultimately agreed with a prior ruling by a federal judge in Texas. However, the New Orleans-based three-judge panel advised the Texas judge to take another look at the program after the Biden Administration announced a new revision in August that is set to take place on October 31st.
“A district court is in the best position to review the administrative record in the rulemaking proceeding,” said the 5th Circuit’s opinion, written by Chief Judge Priscilla Richman. The other two judges are judges Kurt Engelhardt and James Ho; Richman was appointed by President George W. Bush, while Engelhardt and Ho were appointed by President Donald Trump.
Last year, U.S. District Judge Andrew Hanen in Texas determined that the DACA program is illegal due to its failure to follow the requirements of the federal Administrative Procedures Act, as the program has not been subject to public notices and comment periods. However, Judge Hanen opted to let the program remain temporarily intact for all who have already benefited from it, pending a higher court’s ruling that would hand down a final decision on the fates of all involved.
The changes implemented by the Biden Administration, totaling 453 pages, are mostly technical and do not make any substantial changes to the policy. However, they do allow for public comments that previously were not available for DACA, in a bid to save the program from technical legal challenges.
If Judge Hanen ultimately sides against DACA once again, then the case will most likely return to the Supreme Court, which would mark the third time that the controversial amnesty program has gone before the nation’s highest court. The Supreme Court previously ended up in a deadlocked 4-4 vote on the program’s future in 2016, after the death of Associate Justice Antonin Scalia, thus preserving the program. In 2020, the court ruled 5-4 in favor of keeping DACA in place, but only did so claiming that the Trump Administration had not used the proper federal channels in its attempt at ending DACA.
DACA was first conceived as federal legislation known as “The DREAM Act,” and was first introduced during the Obama Administration. However, it failed to garner bipartisan support and never passed through Congress. In response, Obama instead took the unprecedented step of implementing many of the same elements of the failed bill as an executive order, a move widely seen as sidestepping Congress and ignoring the separation of powers between the federal branches. DACA currently has provided amnesty to over 600,000 illegal aliens as of March of this year.