Criminal Justice & the Rule of Law

The Fifth Circuit Holds That DACA Exceeds Executive Authority

Peter Margulies
Friday, October 7, 2022, 8:01 AM

Current recipients keep benefits for now, pending district court review of the Biden administration’s DACA rule.

Rally by the Supreme Court as the DACA cases are heard inside in November 2019. (Source:

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On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit held in Texas v. United States that the Deferred Action for Childhood Arrivals (DACA) program conflicted with the limits on executive authority in the Immigration and Nationality Act (INA). The decision was written by Fifth Circuit Chief Judge Priscilla Richman and joined by Judges Kurt Engelhardt and James Ho. It upheld a 2021 ruling by U.S. District Court Judge Andrew Hanen (see my analysis of Hanen’s ruling here). The panel’s decision left intact Hanen’s stay of his earlier injunction, allowing current DACA recipients to continue in the program. On the merits, the panel addressed only the 2012 memorandum by then-Secretary of Homeland Security Janet Napolitano creating DACA; it left for Hanen the job of assessing DACA’s legality under the final rule issued on Aug. 30 by Homeland Security Secretary Alejandro Mayorkas. However, the panel’s reasoning also casts doubt on the final DACA rule’s validity.

The DACA Program 

DACA has two elements, as Chief Justice John Roberts explained in his opinion for the Supreme Court in Department of Homeland Security v. Regents of the University of California. In Regents, the Supreme Court held that President Trump’s Department of Homeland Security had not adequately explained its attempt to rescind DACA. The Obama administration had initiated DACA to help “Dreamers”: foreign nationals who entered the United States as children, accompanying parents who entered the country unlawfully. Analyzing the program, which currently has approximately 600,000 recipients, Roberts described it as two-pronged, providing both a reprieve from removal—which Roberts referred to as “forbearance”—and the opportunity to seek a work permit, which he referred to as an immigration “benefit.” 

While it offers forbearance and a valuable immigration benefit, DACA does not confer a legal status, per se—only Congress can establish forms of legal status under the INA. Those forms of status confer legal permission to remain in the United States upon a range of foreign nationals, including nonimmigrants (tourists and students) and immigrants (close family members of U.S. citizens and lawful permanent residents, as well as persons approved for skilled jobs that U.S. citizens and lawful permanent residents are not interested in filling). Persons granted asylum due to fear of persecution also receive a legal status and a chance to become lawful permanent residents and eventually U.S. citizens. DACA does not entail a formal legal status in this sense, and its recipients typically do not qualify for legal status through the paths described. Nevertheless, DACA’s renewable combination of a definite term of forbearance and a work permit makes enrollment in the program valuable. 

This renewable combination equals the value conferred by temporary forms of status under the INA, such as Temporary Protected Status. For the time being, DACA’s value may exceed certain forms of temporary status as a practical matter, given that under Regents DACA may require a reasonable explanation under the Administrative Procedure Act, which takes time to assemble. DACA enrollment in the short and intermediate terms approaches the value of lawful permanent resident status—the “gold standard” under the INA—although a less sympathetic administration could rescind DACA if it followed the Administrative Procedure Act, and DACA recipients lack the ability of lawful permanent residents to apply for citizenship and sponsor relatives for admission to the United States. 

Nevertheless, the value of DACA to its recipients prompts tension with the INA’s statutory scheme that the 2012 Napolitano memorandum failed to acknowledge. The final rule that the Department of Homeland Security issued in August does better in this respect—although it, too, could have provided a more comprehensive explanation. 

Background on DACA’s Tension With the INA: The Courts and President Obama’s Deferred Action for Parents of Americans (DAPA) Program 

In its Oct. 5 decision, the Fifth Circuit affirmed Judge Hanen’s holding that the INA was a comprehensive framework that had no room for DACA’s large-scale aid to noncitizens. According to the court, permissible exercises of discretion to aid immigrants under the INA had to be more modest than the DACA program’s combination of forbearance and benefits for 800,000 noncitizens. The mismatch between DACA and the INA’s framework was particularly striking because DACA recipients as a group have no reasonable path available to a lawful status under current law.

To understand the Fifth Circuit’s decision, it’s useful to understand the reasoning in its 2015 decision ruling that DAPA exceeded legislative authority. DAPA, a program announced in late 2014 by President Obama’s then-Secretary of Homeland Security Jeh Johnson, was a far larger program than DACA that would have granted “forbearance” and “benefits” to over 4 million adults who lacked a lawful status in the United States but had children who were U.S. citizens. The Justice Department’s Office of Legal Counsel (OLC)—the distinguished office that often has the last word on legal issues within the executive branch—had approved DAPA’s legality. Nevertheless, the Fifth Circuit’s 2015 decision, which the Supreme Court upheld in 2016 by a 4-4 vote (since Justice Scalia had died and had not yet been replaced), drew negative inferences from the absence of textual or structural support in the INA for a large-scale renewable program that provided applicants with both a discrete term of forbearance and eligibility for a work permit. In that sense, both the Fifth Circuit’s 2015 DAPA decision and its Oct. 5 DACA decision flow from the Supreme Court’s application of the “major questions doctrine,” which the Supreme Court discussed in FDA v. Brown & Williamson Tobacco Corporation and expanded in West Virginia v. EPA

Bracketing whether West Virginia unduly expanded the major questions doctrine (discussed by Adrian Vermeule here), the doctrine’s Brown & Williamson iteration hinges on common-sense inferences from text, structure, statutory history, and past practice. In Brown & Williamson, Justice Sandra Day O’Connor, writing for the Court, found that the federal Food and Drug Administration (FDA) lacked power to regulate cigarettes. As O’Connor noted, Congress had never expressly granted this power to the FDA. Moreover, Congress had repeatedly enacted measures that affirmed the tobacco industry’s role—measures that would be incongruous if Congress had intended to give the FDA the power to ban tobacco products. O’Connor also noted that Congress had already selected a mode of regulation centering on product labeling and transparency about the health risks of cigarettes. Finally, the FDA had for many years disclaimed the power to regulate such products. Given the tobacco industry’s political, economic, and social significance, O’Connor concluded, it would have been an excessive interpretive leap to read the FDA’s enabling statute as providing this power. 

In the DAPA case, the Fifth Circuit applied a similar analysis. The court reasoned that Congress in the INA had set forth a comprehensive framework with myriad forms of status, both temporary and permanent. In contrast, the INA lacks any textual or structural support for a large-scale two-pronged forbearance/benefits program of deferred action. Indeed, Congress for years has sought to limit open-ended, untailored deferred action grants. For example, over 20 years ago, Congress placed a 120-day limit on extended voluntary departure, under which immigration officials had allowed thousands of noncitizens to stay in the U.S. after they had been placed in removal proceedings. Similarly, Congress has long sought to limit grants of release or “parole” to noncitizens apprehended at the border or other ports of entry, requiring “case-by-case” decisions supported by “urgent humanitarian reasons or significant public benefit.” 

Countering this argument, OLC and the government, in defending both DAPA and DACA, relied on generic grants of power, including 8 U.S.C. § 1103(a)(3), which authorizes the secretary of homeland security to “establish … regulations” and “perform such other acts” as the secretary “deems necessary” under the INA. On the surface, this seems like a sweeping grant of authority. However, the Fifth Circuit in the DAPA case and Judge Hanen in his DACA analysis indicated that such generic statutory language merits a far more modest interpretation. Under the major questions doctrine, such language merely authorizes regulations and other policies that would otherwise be consistent with enabling legislation, given the text and structure of the statute. Reading a generic grant of authority as overruling a statute’s text and structure would treat Congress’s painstaking handiwork on the latter features as superfluous. Courts generally treat text and structure as conveying meaning; relegating them to the surplus bin seems out of keeping with Congress’s plan.  

This analysis also has implications for administrative law’s Chevron doctrine. Under Chevron, courts uphold exercises of agency discretion if a statute is ambiguous and the agency’s reading is reasonable. The Fifth Circuit found in both the 2015 DAPA decision and the Oct. 5 DACA ruling that, in light of the major questions doctrine, each program violated the INA’s clear framework. Moreover, according to the Oct. 5 DACA decision, the size of the DACA program also made it unreasonable under Chevron’s second test of reasonable interpretation. 

DACA and Past Practice

One ongoing dispute regarding the legality of DACA concerns the nature and scope of past practice. Here, the courts, the executive branch, and scholars have often been imprecise. Taking a broad view of U.S. history, one can view certain discretionary assistance to noncitizens as fitting long-standing U.S. foreign policy postures. As I have discussed in a forthcoming article in the Hastings Law Journal, U.S. presidents have intervened to help certain “intending Americans” (prospective future citizens), including the 19th century Hungarian freedom fighter Martin Koszta. President Franklin Pierce’s use of U.S. naval power to face down the Austro-Hungarian Empire and rescue Koszta, who had earlier resided in New York, was a building block for the presidential “protective power” embraced by the Supreme Court in In re Neagle (Henry Monaghan analyzes this decision well). Congress has acquiesced in this kind of targeted use of presidential power, suggesting that it has earned a measure of judicial deference in the second category of Justice Robert Jackson’s canonical separation-of-powers framework in Youngstown Sheet & Tube Company v. Sawyer (see then-judge Brett Kavanaugh’s review of Judge David Barron’s war powers book). 

The situational use of power in cases like Koszta’s may not fully underwrite a large program such as DACA. However, that pedigree illustrates the links between a tailored use of deferred action and U.S. foreign affairs. Indeed, President George H.W. Bush and subsequent presidents have asserted executive power under Article II of the Constitution to protect foreign nationals who would be at risk if they had to return to challenging situations in their countries of origin caused by government crackdowns, civil unrest, or natural disasters. President Obama cited this power in permitting Liberians to stay in the United States even though the Liberians’ statutory Temporary Protected Status had lapsed. President Obama took this action even though Congress had declared that Temporary Protected Status is the “exclusive” remedy for country-specific immigration relief. 

Arguably, a similar rationale under either presidential power over foreign affairs or the INA could cover current DACA recipients. It’s true that the power claimed by George H.W. Bush, Barack Obama, and other presidents often stemmed from difficult conditions in particular countries, while DACA recipients came here as children from a range of foreign states. Nevertheless, the removal and repatriation of hundreds of thousands of DACA recipients would have significant foreign policy impacts, particularly in countries such as Mexico and other states in Central and South America that already face daunting challenges due to poor governance, widespread violence, and climate change. The distinctive needs and attributes of DACA recipients, who often know no country other than the United States as home, exacerbates those disruptions, as the August 2022 final DACA rule maintains. 

This tailored foreign policy argument for DACA’s legality is not addressed in the Fifth Circuit’s Oct. 5 opinion and also has not attracted sufficient attention from immigration law scholars. Too many scholars, including Yale professor Cristina Rodriguez and her frequent collaborator, NYU professor Adam Cox, espouse a “maximalist” view of executive discretion that Zachary Price has criticized as overbroad. On this maximalist account, only the political process can be a constraint on executive efforts to assist noncitizens without a lawful basis for remaining in the United States. Other scholars such as Shoba Sivaprasad Wadhia have provided comprehensive accounts of prosecutorial discretion in immigration law. However, as Josh Blackman has noted and the Fifth Circuit has echoed, most prior uses of deferred action have been interstitial, functioning as bridges to a legal status that was already reasonably available to recipients. That was true of the Family Fairness program that aided the spouses and children of noncitizens who received legalization under the 1986 Immigration Reform and Control Act (IRCA). Under the INA, both spouses and children of IRCA enrollees would have eventually been eligible for immigrant visas, as those IRCA enrollees obtained lawful permanent resident status and ultimately citizenship. In contrast, DACA recipients as a class have no such avenue open to them. 

The Outlook for DACA

The Fifth Circuit’s decision signaled that the maximalist view will not carry the day in that court. However, since the Fifth Circuit remanded the case to Judge Hanen to address the impact of the final DACA rule, the foreign affairs strand in the rule may have a role to play. Hanen may determine that the forbearance prong of DACA fits the statute, while the benefits prong fails that test. The DACA final rule noted that this bifurcation was one possible outcome. However, the final rule also observed that this result was not optimal, given the foreign policy goals that DACA promoted and the collateral damage to DACA recipients, their families, and U.S. persons and entities if DACA recipients must relinquish access to employment, services, and educational opportunities.  

Ultimately, unless Congress acts, this case seems headed for the Supreme Court, which affirmed the Fifth Circuit’s 2015 DAPA ruling in an equally divided vote and has since gained Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, whose views on executive discretion and immigration can be challenging to predict. (Justice Ketanji Brown Jackson’s views on this subject seem more certain to track the DACA-friendly views of her predecessor, Justice Stephen Breyer.) In the meantime, because the Fifth Circuit left Judge Hanen’s stay in place, current DACA recipients will continue to be enrolled in the program.

Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National Security Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York: NYU Press, 2010).

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