Legal Sidebari

The Legality of DACA: Recent Litigation
Developments
Updated November 3, 2021
Since 2012, certain unlawfully present non-U.S. nationals (aliens, as the term is used in the Immigration
and Nationality Act [INA]) who entered the United States as children have been permitted to remain and
work in this country for renewable two-year periods under the Deferred Action for Childhood Arrivals
(DACA) initiative. During the Trump Administration, the Department of Homeland Security (DHS)
sought to rescind DACA on the basis that it was unlawful. Several federal district courts enjoined DHS
from terminating DACA and required the agency to continue accepting DACA applications and work
authorization requests from current DACA recipients. In 2020, the Supreme Court held that DHS’s
rescission of DACA violated procedural requirements in federal law, thereby leaving DACA largely
intact, without deciding on the legality of DACA itself.
In a separate and ongoing case, the State of Texas (joined by eight other states) challenges the legality of
DACA. The plaintiffs rely on a 2015 decision by the U.S. Court of Appeals for the Fifth Circuit (Texas I)
ruling that a related initiative, which would have expanded DACA and granted relief to unlawfully
present parents of U.S. citizen or lawful permanent resident (LPR) children, was unlawful. In the new
case—commonly called Texas II—a federal district court ruled on July 16, 2021, that DACA is similarly
unlawful. This Legal Sidebar examines the status of and key issues in the Texas II litigation. For further
background about DACA, see CRS Report R46764, Deferred Action for Childhood Arrivals (DACA): By
the Numbers, by Andorra Bruno.
What Is the Current Status of DACA?
The July 16 ruling in Texas II invalidates (or, in legal terminology, “vacates”) the DACA program.
However, noting that DACA recipients have relied on the DACA initiative and its associated benefits for
nearly a decade, the district court temporarily stayed the ruling as it applies to current DACA recipients
pending an order from the district court, the Fifth Circuit, or the Supreme Court, on further review.
As a result, current DACA recipients may retain their status and lawfully remain and work in the United
States for the time being. They may also apply to renew their status every two years and seek permission
to travel abroad and return to the United States pursuant to “advance parole.” On the other hand, the
federal district court’s order currently bars DHS from approving new, first-time DACA applications and
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granting status to those applicants pending the outcome of the litigation (but the court’s order does not bar
DHS from accepting new applications for processing as required under a separate district court order).
Consequently, applicants (or prospective applicants) who have not yet obtained DACA status cannot be
granted it while the district court order remains in place.
The district court order returned the DACA initiative to DHS for reconsideration. The court determined
that DHS should address a number of issues in weighing a potential “reformulation” of DACA, including
the possibility of deferring removal without awarding any collateral benefits (e.g., employment
authorization), the extent to which DACA adversely impacts the employment of states’ legal residents, the
impact of DACA and similar programs on legal and illegal immigration, and the costs DACA imposes on
states and local communities.
The Biden Administration has appealed the district court’s ruling to the Fifth Circuit. Therefore, although
the Texas II court has ruled against the legality of DACA, the Fifth Circuit could issue a superseding
ruling at some point. Additionally, following the filing of its appeal, DHS announced a proposed rule that
would “preserve and fortify” the DACA policy by codifying it into federal regulations. The agency has
sought public comments on the proposed rule.
What Are the Main Legal Issues in Texas II?
The salient issue in Texas II is whether DHS has authority to implement DACA. The INA establishes an
intricate scheme of restrictions as to which categories of aliens may enter or remain in the United States
and under what conditions. Has DHS violated that scheme of restrictions, or its constitutional duty under
the Take Care Clause to pursue faithful execution of those restrictions, by implementing a program with
potential to provide temporary relief from removal, work authorization, and other benefits to more than 1
million persons whose presence violates the INA? Or does DACA fall within the scope of the
enforcement discretion that DHS, like all federal enforcement agencies, enjoys to allocate its
prosecutorial resources in the manner that the agency determines best serves the national interest,
particularly given that the number of unlawfully present aliens in the United States far exceeds DHS’s
removal capacity for any given year?
The July 16 ruling in Texas II holds that DACA conflicts with the INA scheme. Other federal courts
reasoned to the contrary in lawsuits related to the Trump Administration’s efforts to terminate DACA
(those decisions, however, are no longer good law after the Supreme Court ultimately struck down the
termination on other grounds, as discussed below).
The plaintiff states in Texas II also argue that DHS violated procedural rules by implementing DACA
without conducting notice and comment rulemaking procedures. The district court agreed, but also
acknowledged that DHS could conceivably remedy this defect by promulgating a new DACA regulation
following notice and comment.
As noted, DHS more recently announced a proposed DACA rule. In its notice, DHS addressed the district
court’s ruling concerning DACA’s legality. The agency argued that DACA does not violate the INA
because it merely confers—as an exercise of the executive branch’s enforcement discretion—temporary,
“lawful presence,” and creates no legally enforceable right for aliens to remain in the United States under
a “lawful immigration status.” Based on the district court’s order, DHS also weighed the costs and
benefits of DACA, and potential alternatives to that program, and invited public comments on the
proposed rule.

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How Does Texas II Relate to the 2020 Supreme Court
Decision About DACA (DHS v. Regents of the University
of California)?
The Regents case concerned the legality of DHS’s 2017 decision to rescind DACA. Several lower courts
held that the rescission was likely unlawful under the “arbitrary and capricious” standard of the
Administrative Procedure Act because DHS had not “adequately explained” the reasons for the rescission.
In its 2020 decision, the Supreme Court agreed that DHS had offered insufficient reasoning in support of
its DACA rescission (though the Court observed that DHS could end DACA if it provided an adequate
explanation and satisfied any other procedural requirements). In contrast, the Texas II litigation concerns
the legality of DACA itself, an issue that the Supreme Court did not address in Regents. In short, the
Texas II case is about the legality of DACA, while Regents concerned the legality of DACA’s
termination.
How Does Texas II Relate to the Texas I Litigation
Concerning the Deferred Action for Parents of
Americans and Lawful Permanent Residents (DAPA)
Initiative?
In 2014, two years after the DACA initiative was launched by the Obama Administration, DHS
announced a two-part initiative that would have (1) expanded DACA to cover more childhood arrivals
and extended the deferred action period from two to three years, and (2) granted similar relief to certain
unlawfully present aliens with children who are U.S. citizens or LPRs (DAPA). In 2015, the Fifth Circuit
held that this initiative likely violated federal law because DHS failed to comply with notice and comment
procedures when it created this expanded initiative, and the broad relief and associated benefits conferred
by the initiative conflicted with “the INA’s system of immigration classifications and employment
eligibility.” An equally divided Supreme Court affirmed in 2016. The case did not concern the legality of
the original DACA program.
The Texas II litigation, on the other hand, strictly concerns the legality of the original DACA program, as
it was implemented in 2012. In ruling that DACA is unlawful, however, the district court determined that
the Fifth Circuit’s reasoning in Texas I—that DHS’s implementation of DAPA and expansion of DACA
violated the INA’s statutory scheme because it exceeded the existing framework for conferring lawful
presence and associated benefits—equally applied to the implementation of DACA.

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What Options Does Congress Have?
As with most immigration issues, Congress has ultimate authority to decide the future of DACA
legislatively and is not required to wait for a resolution to the Texas II litigation. Congress could terminate
DACA by defunding it or through substantive legislation that clearly prohibits DHS from granting the
types of protections that the program provides. Conversely, Congress could enact a law clarifying that
DHS has authority to implement DACA and other programmatic deferred action programs that confer
collateral benefits. Or, along the lines of the American Dream and Promise Act of 2021, passed by the
House in March, Congress could grant DACA recipients (and, if it wishes, other childhood arrivals and
other groups of unlawfully present aliens) statutory relief. Such relief could include, among other
possibilities, protection from removal, eligibility for specified benefits, and a pathway to LPR status.
More broadly, Congress could consider legislative options that generally address the unlawfully present
population at large, such as a proposal to “parole” unlawfully present aliens who meet certain
requirements and allow them to remain and work in the United States for renewable periods of time.

Author Information

Ben Harrington
Hillel R. Smith
Legislative Attorney
Legislative Attorney





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