Federal Judge Fully Reinstates DACA, But Fate of Program Still Uncertain

December 11, 2020

In the wake of a federal court ruling fully reinstating the Deferred Action for Childhood Arrivals program, a 2018 lawsuit poses yet another threat to the besieged program, underlining the necessity of a legislative solution.

The Department of Homeland Security has indicated that it will begin accepting new applications for the program in compliance with last week’s ruling.

However, a lawsuit filed by Texas Attorney General Ken Paxton and several state attorneys general in the Southern District of Texas seeks to wind down the program over the next two years.  A hearing is scheduled for December 22nd. 

U.S. District Judge Andrew Hanan, who will consider the lawsuit, has signaled that DACA is likely unlawful, as plaintiffs argue that the program is a “textbook case of prohibited executive lawmaking.” 

“If the nation truly wants to have a DACA program, it is up to Congress to say so,” Judge Hanan wrote in a previous ruling.  Congress has been considering various measures to accomplish this since 2001.  The most recent version, The American Dream and Promise Act, passed the House but failed to be taken up in the Senate. 

Outlook:  Passing DACA legislation will be a priority for Democrats in 2021 but Senate Republicans will be the key.