Immigration

District Court Declares DACA Unlawful (Updated)

The Supreme Court never held that DACA was legal when adopted, and a court in Texas has decided it is not.

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This afternoon a federal district court judge in Texas declared that the Deferred Action for Childhood Arrivals (DACA) program is unlawful and barred the federal government from admitting new individuals into the program. The decision in Texas v. United States is sure to be appealed, though there is a reasonable chance it will be upheld.

The Supreme Court narrowly rejected the Trump Administration's effort to rescind DACA in Dept. of Homeland Security v. Regents of the University of California. Importantly for the present case, Chief Justice Roberts' opinion conspicuously avoided any determination that DACA itself was lawful when adopted. Further, controlling precedent in the U.S. Court of Appeals for the Fifth Circuit holds that the Obama Administration's DAPA immigration reforms, the lawfulness of which rested on a similar legal theory, was illegal. That case went to the Supreme Court, and the Fifth Circuit's decision was affirmed without opinion by an equally divided Court (which was short-handed due to Justice Scalia's untimely death). Accordingly, whether the plaintiff states had standing to challenge DACA's continued operation was a bigger issue than the legality of the program.

The district court's standing analysis is extensive, but ultimately concludes that the plaintiff states may challenge the program, relying in part on the doctrine of "special solicitude" for state standing claims under Massachusetts v. EPA. Here, as with much of the Court's analysis on the merits, the district court relies heavily upon controlling Fifth Circuit precedent from the DAPA litigation.

Having concluded that the plaintiff states have standing, the court quickly dispatches with any claim that DACA is unreviewable under the APA as an exercise of enforcement discretion. Given the Supreme Court's holding in Regents, that seems to be a no-brainer. It also loads the dice for the question of whether DHS was required to conduct a notice-and-comment rulemaking.

Turning to that question—whether the Department of Homeland Security violated the APA's procedural requirements in enacting DACA—the court rejects the federal government's claim that DACA is nothing more than a policy statement. Accordingly, the court concludes, DHS violated the APA by failing to conduct an informal rulemaking (aka "notice and comment") and DACA "never gained status as a legally binding policy that could impose duties or obligations."

Although this procedural holding provides sufficient basis for invalidating DACA, the court proceeded to address the underlying substantive argument that DACA violates existing immigration law. The court justifies this choice on the grounds that DHS announced its intention to conduct a notice-and-comment rulemaking that could cure the procedural APA violation, and its analysis could provide guidance for DHS on remand. (It also notes that the Fifth Circuit did something similar in the DAPA litigation.)

On the underlying question, the court concludes that DACA exceeds the authority Congress delegated to DHS under existing immigration statutes. In the court's view, DACA's alteration of federal policy concerning removal and work authorization are contrary to the comprehensive and carefully calibrated scheme enacted by Congress. I am on record as being skeptical of this argument but, as noted above, the Supreme Court had ample opportunity to conclude that DACA was lawful in the Regents case and failed to do so. Further, it is quite difficult to distinguish the legal arguments supporting DACA's lawfulness from those the Fifth Circuit rejected in the DAPA litigation, a point which the district court explains at length. Accordingly, there is nothing particularly surprising about the district court's conclusions here.

Having concluded that DACA is unlawful, there remains the question of what to do about it. Here the district court acknowledges the substantial reliance interests of DACA recipients and enjoins DACA prospectively, but does not invalidate DACA as applied to current recipients. The opinion concludes:

these rulings do not resolve the issue of the hundreds of thousands of DACA recipients and others who have relied upon this program for almost a decade. That reliance has not diminished and may, in fact, have increased over time. Therefore, the order of immediate vacatur as it applies to current DACA recipients (but not the order of remand) is temporarily stayed until a further order of this Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court.

DHS may continue to accept new DACA applications and renewal DACA applications as it has been ordered to by the Batalla Vidal court cited above, but it is hereby enjoined from approving any new DACA applications and granting the attendant status. A separate injunction order will be entered to that effect. To be clear, neither this order nor the accompanying in junction requires DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.

In other words, because DACA is unlawful, the federal government may not approve any new DACA applications. Those who have already received DACA, however, are not effected, at least until the expiration of current deferrals.

Stay tuned, as this is not the last you will hear about this case.

UPDATE: My co-bloggers have more. Here are Sam Bray on standing, remedies, and the court's injunction and Josh Blackman on what comes next.

NEXT: 11th Circuit Refuses to Issue Injunction Against CDC Eviction Moratorium - but Doesn't Rule on the Moratorium's Legality

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  1. Without looking, I am going to guess that Andrew Hanen is a South Texas law graduate.

    1. As per usual Artie goes for the bigotry and insults when he loses.

      1. If you use the helpful “Mute User” function his boring flavor of intolerance won’t be visible…

        1. Guys like me will continue to stomp guys like you into submission in the culture war — until the day you are replaced, by your betters — whether you read my comments or not.

          Immigrant-bashing, disffected, right-wing white nationalists are among my favorite culture war casualties.

          1. Guys like you are doing pretty good.

            You’re getting rid of women’s sports.

            You’ve gotten feminists to defend the right of men to show their dicks to unwilling women in places like spas.

            And now you’ve taken out Boston Pride?!?

            I am in awe.

          2. “replaced, by your betters”…the truth comes out. There are superior and inferior groups of people.

            1. Note that quoting/responding to/engaging with trolls just encourages and validates their sad, sad existence. Is that your goal? If you mute and/or simply ignore them they are much less visible, which IMO is a good thing.

  2. This decision supports the local culture of judicial decision making. It shows appellate law is just bias, and has no external validation.

  3. I assume that everyone celebrating this is willing to personally find someone who has been here since they were 2, force them at gunpoint into a van and then take them to a place they have no connection to. Because that’s what you’re endorsing: that government agents have the ability to do that. Absolute moral bankruptcy wins again.

    1. It would appear you support rewarding bad behavior. Which only results in more bad behavior. You must be a Democrat.

      1. How does being brought here at age 2 count as bad behavior? Please explain to me how that it possible morally? I’d be fascinated.

        1. Most Mexicans, according to their own government data, quit going to school around 13 years old and start working. So, if compromise is anywhere in the offing, make some sort of allowance for those entering the country below age 13. If they were older than that when coming illegally, treat them like the adults they considered themselves to be.
          DACA is too lenient, but could be altered to reflect the culture of Mexico.

          1. Someone has never met a 13 year old.

            1. And someone else has never met a 13-year-old in a developing country.

              1. So because people our deprived of the luxuries of America 13 year olds can be treated liked adults and brutalized for the choices of their parents. Cool reasoning, bro.

                1. I betcha most 13-year-olds in developing countries have better reading comprehension skills than you do, “bro.” It certainly wouldn’t take much.

                  1. No I understood exactly what you meant: it’s okay to treat 13 year olds from developing countries like adults and use more force than you would against American teenagers. What else could you possibly have meant?

                    1. I’ll play exactly one more round, then you can go pick up the rattle yourself.

                      As OP clearly said, it’s OK to treat 13-year-olds from developing countries who act like adults and make adult choices like adults. We actually do that here with our own citizens in a number of contexts — generally not for those on the finishing school track, so entirely possible that’s escaped you.

                      Re “use more force”: that seems to be your fanciful introduction into the discussion, so no idea what you’re talking about or how to help you there.

        2. You are mistating the decision, the law does not affect anyone’s current status.

          1. Does it or does it not allow government agents to use force to remove people brought here as children at some point in the future?

            1. Is it your position that any less than 18 year old person who enters this country illegally for any reason and in any matter automatically qualifies for permanent residency? Because that is what you’re saying.

    2. I’m curious if you supported the DAPA, the original companion policy invalidated by Hanen and affirmed by the 5th Circuit and SCOTUS, that sought to provide identical status to the parents and guardians of the children now benefitting from DACA?

      In any event, if DACA is overturned, the only people to blame are the parents and guardians who knowingly and willingly entered and remained in the country illegally with young (and not so young) children in contravention of long established immigration law and procedure that’s comparable to most other countries.

      1. “Blame the parents” is such a lame excuse for when institutions do bad things to people because of decisions of their parents. Blaming the parents doesn’t actually absolve government agents of moral responsibility for using force to make people go live in a place they have zero connection to.

        Seriously go point a gun at someone who was brought here at age two while you load them into van. Say to them “this is your parents fault” and see if you can do it without sounding like a psychopath. I assume you can’t.

        1. If I understand your point of view, it is that in all cases (or just this case?) compassion should be substituted for the rule of law? Because I’m all in favor of letting dreamers stay by some legal process, and hope (and even believe) that both sides probably can agree to something to make it the law of the land. But if feelz is the only necessary basis for bypassing the correct legislative and legal process it seems like a mighty squishy system of government that you appear to want.

          1. I just don’t think you should separate the moral implications from the legal decision. Judicial decision makers should not be let off the hook that easy.

            1. So team “feelz”, got it. I don’t want to be ruled by a combination of “priests in robes” and executive orders without basis in law. If you want to argue that the judge is wrong as to the law, great. I’m not a lawyer and not well equipped to make such an argument. But if you believe that judges should ignore the law in the name of compassion (which often means in the name of their personal values and views, which may or may not agree with yours), not a great system of government IMO.

              1. Here’s the thing: you always have been ruled by priests in robes and executive orders with no legal basis. They ignore “the law” in favor of their values all the time. And a lot of those times those values suck. So yeah I’m not going to let them off the hook by pretending they do something called “law” and not politics in a different mode.

                1. I’d like executive orders curtailed as much as possible. I wish congress would defend their prerogatives more strongly. And I’d like judges to at the very least plausibly pretend to adhere to the rule of law. In the other case of the day, the eviction moratorium (which also feels lawless to me) does your approach to the law say it should be extended indefinitely? Because the plight of the poor evicted people are much more important than the truly dubious legal basis for the moratorium? Feels like this can be extended to make all laws meaningless.

            2. LTG,

              “I just don’t think you should separate the moral implications from the legal decision.”

              Indeed I agree with you. If the clowns that occupy our Congress truly held that point of view, they would pass definitive legislation to render the situation of these “dreamers” legal and leave before the courts the unsupported executive usurpation of legislative prerogative. Both the “dreamers” and our Nation would be far better off.

        2. You didn’t answer my first questions of whether you supported the policy of providing effective amnesty to adults who brought these children here as well as the children themselves.

          Let’s compromise – the innocent children can stay, I’ll even throw in a path to actual citizenship. but those the parent and guardians who brought them here illegally, to the extent they haven’t otherwise legalized their residency, *must* be immediately deported, with no recourse to apply for legal admission due to the status of their children.

          This way the children aren’t forcibly removed and continue to enjoy the benefits of the USA, and the adult illegal aliens who actually caused the problems and knew exactly what they were doing, are removed.

          If you don’t consider this or something similar to it to be fair or just, you then just oppose national borders, and that’s a whole different issue.

          1. It’s more morally ambiguous on DAPA.

            But I’m not making compromises with you or anyone. I’m not in Congress or a judge. I am simply pointing out the poor moral content of this decision. Agreement on policy is irrelevant to that.

            1. If you think that allowing people to break our laws is moral, then your moral compass is out of whack.

              1. How does someone brought here as a kid break a law? Like where could a two year old form the mental state or the voluntary action to do that? Yet they’re the ones who get to be the subject of government force.

                1. Saying a “2-year old” broke the law is patent nonsense. Yet the delinquency of the parents is difficult to overlook.

                  Nonetheless, the Rs are very stupid not to champion family values and tie the resolution of the predicament of the dreamers to legal residence status in the US under under relaxed yet clearly restricted conditions. If they would extoll the family values of immigrant hispanics rather than whining about “dirty immigrants,” they may find their electoral prospects greating omproved in the southwest, including California

                  1. If they would extoll the family values of immigrant hispanics

                    They’ve spent literally dozens of years doing this.

                    1. I don’t see or hear that. I hear lots of anti-immigrant noise that alienates Hispanics.

                  2. “Yet the delinquency of the parents is difficult to overlook.”

                    Recall that DACA was a companion of DAPA, a policy allowing the parents and family of the innocent children to remain in the country legally (and earlier struck down by Judge Hanen).

                    The Republicans aren’t stupid. The children are leverage for a much broader greater amnesty that does not have remotely the same political support as helping the children. It’s also the reason why nothing has been done in Congress. If the Democrats offered a clean bill for just the children, it would gather significant Republican support, but they’re unwilling to do so.

              2. If you think that allowing people to break our laws is moral, then your moral compass is out of whack.

                I mean, it kind of depends on what the laws are, don’t you think? Breaking some laws is moral. Hell, breaking some laws is morally compelled.

                1. This is not a philosophy debate. We’re discussing basic immigration law that states you need to apply and go through standard procedures in order to immigrate, something comparable to almost every other western, and most other, countries. You can’t just walk in.

                  Such immigration laws are essential to most countries to protect their standard of living, jobs, healthcare resources, etc. There’s even some very limited exception like asylum procedures.

                  If you want to argue that we need open borders, let’s have that debate.

        3. Compromise: The kids can stay but can never be citizens. Permanent legal resident would be acceptable. And whoever brought them here must plead guilty to human trafficking and be deported immediately. The adults who broke the law are punished. The children are not.

    3. What do you think happens to the US citizen children of US citizen parents when those parents commit crimes and go to jail?
      What do you think happens to the legal resident children of legal residents in the US when they commit a crime and go to jail, then get deported?
      What do you think happens to wealth stolen by parents that might be otherwise used to care for children?

      Why do you think that criminal acts by parents should result in the US government rewarding the children of those lawbreakers?

      1. It’s a reward to not be kidnapped and taken from your home now? That’s a pretty depraved position.

        1. Elian Gonzalez. Go…

          1. Travesty. As noted in another thread. Janet Reno in general sucked.

            1. “Janet Reno in general sucked.”
              Indeed. Remember Waco, TX.

        2. Considering your chosen screen name, you’re pretty ignorant of what the law is.
          “Kidnapping” is an unlawful act.
          Removing illegal aliens doesn’t fit that definition.

          1. It does require taking someone by force from the only home they’ve known to a place they don’t have a connection to. Other than what shirt the force user wears, the moral content is exactly the same.

        3. It isn’t kidnapping.
          It is a reward, the same as if you were allowed to keep goods your parents stole and gave to you.

          Lying about either of these things – as you keep doing – is certainly a depraved act. Your desire to feel good about yourself at the cost of anyone and everyone else is disgusting and morally bankrupt.

          1. It’s not lying, it’s a blunt description of what’s happening. You’re just uncomfortable with it. You know what else was legal? The Catholic Church taking secretly baptized Jewish kids from their parents. But it has the same moral result as kidnapping.

            See actually don’t think I’m disgusting and morally bankrupt. You’re calling me the immoral one to make yourself feel better about what you actually believe in: taking someone from their home by force to somewhere they have no connection to anymore, and blaming the parents while you do it.

            See you would never actually do this to someone in real life: because you know it is wrong. You would never take someone by force, away from their friends and family, disrupt their education, and along the way say you didn’t deserve any of that it’s your parents fault this is happening.

            But you support other people doing that. And to reckon with that moral compunction you have, you have to lie to yourself that the person pointing it out that’s what you support is actually the immoral one.

            But it’s not going to work. History doesn’t look very kindly on people who want to use force against people just for existing in the wrong place.

            1. First of all, I think you should consider changing your screen name, since you’re not “talking” about “law” at all, or whether this judge, or the judicial branch in general, is correctly analyzing whether DACA is good law. Your argument is (in your view) moral, not legal.
              In order to advance your argument, you are personally willing
              (A) along with Ilya, to dispense with the concept of the rule of law, including the concept that laws are enacted in our society in certain ways, and that the judicial branch interprets these laws in accordance with legal reasoning, not the feelings of a particular judge.
              (B) in order to accomplish your aim you are willing to invest the President (in this case Obama) with dictatorial power, if Congress fails to pass a law that you want; and
              (C) you are willing to throw out, on moral grounds, the concept of a nation state with sovereign and enforceable borders, it being a tautology that a nation state has borders.
              That quite a price you want society to pay to accomplish your moral ends. Meanwhile minors, some accompanied, some not, are crossing our border up to and including this very day, thereby coming to “the only home they’ve ever known”.

            2. Deporting illegals is neither illegal nor immoral, and it certainly isn’t kidnapping.
              See, kidnapping is a crime, deportation is not. It’s no different than imprisonment by the government – anyone else doing it is a crime. You claim to be a lawyer but still make these stupid arguments?

              By the, pot, do you see the utter hypocrisy in trying to call me kettle? You have spend multiple threads on multiple posts calling other people “immoral” and “depraved” because they disagree with you, but when it is pointed out that your own positions are equally open to the same response, you get all offended?

              And yes, I do believe that it is right and just to deport people that have no legal right to be in this country. And no, I’m a private citizen, not law enforcement, so I wouldn’t do it myself – that would be illegal. However, if it was my job, then I would do it.

              Because, you see, I support the rule of law over the rule of feelz. You, despite your pretense of being a lawyer, don’t. And history has shown that people that are willing to overthrow the law for the sake of whatever passion holds them at the moment are exactly the sort of people that civilizations do not want – the KKK, the Nazis, the Red Guard, the Temperance folks, or all the other people that proudly involved themselves in the “moral panics” that later history laughs at.

    4. You assume incorrectly. I can celebrate this decision even while disagreeing with the underlying policy because it was (and still is) Congress’s job to come up with that policy. Reining in an overreaching Executive Branch agency will prevent more harm and misfortune in the long term. The fact that these families will suffer in the meantime is a tragedy – but it’s one that’s easily fixed – again, by Congress.

      A good policy illegally implemented is still illegal and must be overturned. If you think this was a good policy, then lobby your congressmen to pass it. Your “ends justify the means” attitude is a quick road to tyranny.

      1. Tyranny is already here for the people forced at gunpoint to leave their homes. You’re not those people so you don’t think it’s tyranny. Quibbling over which political actor authorizes that to happen is besides the point. The only issue is: who authorized government action to allow that to happen.

        Again: we are talking about government agents, using physical force, up to and including lethal force, to remove people who have been here as long as they remember from their homes to places they may have no connections to.

        Defending that as “the law” or “It’s Congress’s job” doesn’t do anything but spin wheels and create abstractions to mask human suffering and depravity. The Inquisition cared a lot about procedure and who has the power to do what too.
        The results were the same; legality was vindicated over the lives of victims.

        1. They’re not being removed from their “homes”, unless you consider squatters as having established a “home”, and they do have a connection to their homeland, as it is the location of their citizenship.
          You really should consider changing your screen name to CrimeTalkingGuy, since it is crime you advocate for.

          1. Calling people who didn’t choose to come here and have lived here their whole lives squatters is gross. You’re just as much of a squatter as they are: you both had no say in where you lived, your parents decided that for you.

            1. Also, has retiredfire never heard of adverse possession? I’m not claiming that the doctrine actually applies to DACA recipients; I’m just pointing out that our law recognizes that if a person “squats” somewhere long enough (and fulfills the right prerequisites), it becomes unjust to remove that person.

    5. Look, the solution is pretty simple, congress can pass a law that implements DACA. There are enough republican and democratic votes to do it. It hasn’t been done before because the Democrats want to leverage the popularity of DACA to make other immigration reforms that are less popular.

      A clean DACA bill could pass tomorrow, I’m fact Trump had said he would sign a clean DACA bill, but congress never passed one, because they wanted to use it as a campaign issue.

      I will also point out, that the court is just agreeing with the position President Obama took and repeated many times, that he didn’t have authority to implement DACA administratively, to do it legally it requires Congress to change the law.

      You’d think a law talking guy would care at least a little about the law.

      1. It’s a Simpsons joke. The law shouldn’t be used as cover for blatant immorality.

        1. It is immoral to allow law-breakers to avoid the legislatively required consequences for their actions.
          Your concept of morality has no basis in law.

          1. Again explain how a two year old who crossed the border broke any law.

            1. Not to mention that overstaying a visa isn’t a crime at all.

              1. Yeah, and how many illegal immigrants limited themselves to merely overstaying a visa? Didn’t illegally take jobs? Illegally drive, illegally obtain and use forged US ID, illegally take advantage of government programs using that ID?

                Damned few illegal immigrants sneak into this country in order to live in the wilderness eating roots and berries, and never break a law.

            2. Look, if you rob a bank, and give the proceeds to your kid, your kid may not have robbed a bank, but they still don’t get to keep the money.

              If you squat in somebody’s house, when they evict you, they don’t have to let your kid continue squatting.

              Children don’t typically get to keep ill gotten goods, even if they aren’t guilty of their parents’ crimes.

              Now, we could probably all agree to making some sort of charitable allowance for people who genuinely were brought here before the age of consent, and have known no other home. Once it’s been made clear they aren’t legally entitled to it.

              But even that is dicey unless we can also establish that this won’t be permitted to happen again. Otherwise parents will continue sneaking into the country in the expectation that they, or maybe just their children, will benefit from the NEXT amnesty.

              If we can’t establish that there will be relentless, utterly merciless enforcement going forward, we can’t even afford to be that generous. Because we’ve taught the world’s unethical poor that we’ll let them get away with illegally immigrating, and we need to unteach that, HARD.

      2. More importantly, I used to used to have lawyer brain. I still do to a certain extent. But the abstractions have mattered less and less to me over the years. At the end of the day the only issue is: who is sanctioning the use of government force and is that use of force morally acceptable. Most uses aren’t.

        1. To be clear, your logic leads to a semi-official US immigration system of:
          1) enter illegally with children
          2) stay below the radar for long enough for “LawTalkingGuy compassion” to kick in and override immigration law
          3) your kids can stay forever (and maybe you too, can’t separate families, because compassion?)

          I don’t think that is a great system. I’d rather have a more permissive but actually enforced/controlled set of laws myself. And enforcement means people who break it are in fact sent home whenever caught, yep.

          That said, I hope the dreamers get to stay if laws can be worked out personally. But we need a more workable immigration system than we have.

      3. With due respect, if Congress enacts “comprehensive” immigration reform, including let’s say DACA, would it then be OK to enforce THAT immigration law?

        1. No. Because feelings.

    6. Based on current law, how can the courts decide any other way unless they choose to ignore the law? Your own arguments are not a law based argument but one based on the 2-year old brought here by their parents scenario. This anecdotal scenario cannot be a basis for a court decision. Your argument cannot be with the decision but the immigration laws themselves.

      One can make sound and reasonable arguments against the immigration laws of this country. But courts do not make law. They interpret the law.

    7. I volunteer to “force them at gunpoint into a van and then take them to a place they have no connection to”, because that is the place to which they belong.
      If you have a gripe, it is with their parents, who forced them into illegal activity.
      That activity, once they realized they were in violation of the law, and old enough to do the right thing, could be ceased by taking themselves to the country of their citizenship.
      Once that time passed, the violation was on them.
      The absolute moral bankruptcy is by the law-breakers and those, who aid and abet their actions.

      1. “I volunteer to “force them at gunpoint into a van and then take them to a place they have no connection to”, because that is the place to which they belong.”

        That makes you a violent and immoral thug. Nothing more nothing less. You are a bad person.

    8. LTG,
      ” force them at gunpoint”
      That is what the police power of the state is all about. It also happens every time that your political party wants to tax the wealthy – by which you mean anyone who has gotten a professional degree.

      1. I know. And that’s why how we use it has different moral implications. Using it to stop a serial killer is not the same as using it to forcibly remove people from the only home they’ve ever known.

        1. or using it to steal from me.

    9. Absolutely not. The remedy should not punish people who thought the government was doing something legal. Those people who took advantage of it should be left alone. But the program should be terminated and no new people should be accepted.

    10. Also, how to you propose discouraging more human trafficking of children by their parents if you won’t allow children here illegally to be deported?

      1. Maybe we should just focus on discouraging you from laughably misusing the term “human trafficking.”

  4. Affected.

  5. This problem will be addressed. The Democrats will handle it, because Republicans are unable to address it so long as their base is nativist (intolerant, selfish, backward). That means the Dreamers will become citizens, several forms of immigration will become more hospitable to immigrants, and America — as is customary — will continue to improve.

    This issue is on the list — with abortion, guns, voting rights, and a few others — from which the precipitate for Supreme Court enlargement and filibuster elimination (or diminution) will develop.

  6. If not the child, then someone broke immigration law. Laws have penalties and means of redress.

    DACA application should have been along this line:
    “I declare that I had no input into my immigration to the US, and as a minor for —- years after arrival, had no means to live independently or correct my immigration status on my own accord. I declare that the individual(s) responsible for brining me into the US is —————————-, and by this document attest as sworn statement under penalty of perjury that this is true, and that I would cooperate with any government actions that might arise against said person(s)”

    Somebody broke the law, and if not the former 2year old, then someone must be held accountable. Sucks for some people, but at least those with intent to violate law punished, and those who are personally innocent of intent get a pass. Sucks to have parents punished, but that happens all the time to US citizens whose parents screw up.

  7. I think a basic deferral of prosecution is legal given the wide discretion Congress gives the administration.

    That said, I think that the DACA program itself has to be put through the same administrative procedures as the Trump Administration’s attempt to rescind it. If it didn’t get proper notice and comment, the Trump Administration repeal precedent should be applied to make it invalid.

    The baseline is no DACA program, absent legislative change.

    1. I am sympathetic to the DACA peogram as a matter of policy. But immigration is a matter for the political branches. Courts cannot impose hurdles for policies they don’t like that mysteriously dissappear for policies they like, they have to treat both open and heavily restricted immigration policies the same and apply the policy Congress set, giving the President the discretion Congress allowed.

    2. I think the current ruling is actually in line with the previous ruling upholding DACA in so far as the previous ruling settled matters.

      I’m definitely no expert, but my understanding is the first ruling was purely procedural. The Trump administration failed to meet minimum requirement for explaining/justifying the change. The administration failed to remedy the defects, so the change was struck down.

      As far as my own read, as someone with no relevant expertise, providing for deferred action to target the use of limited resources where they are most needed should be clearly within executive discretion. The work authorization would be the potential sticking point I imagine, and i don’t know enough about the underlying law to even hazard a guess at how that should be determined.

      As far as what would be good policy, I’m 100% on board with the Libertarian platform. Free movement for all peaceful people.

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