The NCSL Blog


By Lisa Soronen

A federal district court has issued a temporary nationwide injunction requiring the Trump administration to maintain much of the Deferred Action for Childhood Arrivals (DACA) program.

Rep. Luis Gutierrez (D-Illinois), third from left, and other demonstrators protest outside of the U.S. Capitol in support of the Deferred Action for Childhood Arrivals (DACA), and Temporary Protected Status (TPS), programs, during a recent rally on Capitol Hil. (Jose Luis Magana/AP)Four states—California, Maine, Maryland, and Minnesota—and two local governments in California—San Jose and Santa Clara County—are among the plaintiffs who sued the Department of Homeland Security (DHS).

DACA was established through a DHS memorandum during the Obama presidency. The program allows undocumented persons who arrived in the U.S. before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the U.S. without facing the risk of deportation for two years with renewals available.

DHS rescinded DACA on Sept. 5, 2017, after receiving a letter from the attorney generall stating the program was unconstitutional and created “without proper statutory authority.”

The federal Administrative Procedures Act prevents federal agencies from taking actions that are not “otherwise in accordance with law.” The district court acknowledged that DHS has the authority to terminate DACA on policy grounds. But what it can’t do is make a decision based on a “flawed legal premise.” The attorney general’s conclusion that DACA was unconstitutional and lacked a basis in statutory authority was a “flawed legal premise,” according to the court:

"[W]hat exactly is the part of DACA that oversteps the authority of the agency? Is it the granting of deferred action itself? No, deferred action has been blessed by both the Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting of deferred action via a program (as opposed to ad hoc individual grants)? No, programmatic deferred action has been in use since at least 1997, and other forms of programmatic discretionary relief date back to at least 1956. Is it granting work authorizations coextensive with the two-year period of deferred action? No, aliens receiving deferred action have been able to apply for work authorization for decades. Is it granting relief from accruing “unlawful presence” for purposes of the INA’s bars on re-entry? No, such relief dates back to the George W. Bush administration for those receiving deferred action. Is it allowing recipients to apply for and obtain advance parole? No, once again, granting advance parole has all been in accord with pre-existing law. Is it combining all these elements into a program? No, if each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?"

The relief offered by the court is both limited and subject to appeal. More specifically, the injunction does not apply to those who have not previously participated in DACA (even if they were eligible). Also DACA recipients may no longer leave the United States and be automatically “paroled” back into the country.  +

The million dollar question—unfolding right now—is what impact this decision will have on negotiations between the president and Congress over the long-term future of DACA.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial matters.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.