Washington, D.C. (July 19, 2021) - More than nine years after it was decreed, federal district judge Andrew Hanen has ruled on the merits that President Obama’s executive amnesty program known as Deferred Action for Childhood Arrivals, or DACA, is illegal.

On June 15, 2012, then-Department of Homeland Security (DHS) Secretary Janet Napolitano established DACA through a brief memorandum titled, "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children". In just three pages, the Napolitano memo unilaterally implemented the general framework of the DREAM Act, amnesty legislation that Congress repeatedly rejected since 2001. DACA also awarded work permits and Social Security numbers to illegal aliens who claimed they entered the country before age 16 and met other criteria. At its peak, almost 800,000 illegal aliens benefited from DACA. According to U.S. Citizenship and Immigration Services data, there are currently approximately 616,030 illegal aliens who are active DACA recipients.

Now Judge Hanen has finally ruled on the merits, finding that DACA was an “illegally implemented program” and that “the public interest of the nation is always served by the cessation of a program that was created in violation of law and whose existence violates the law.” Despite those strong words, Hanen neuters the impact of his decision, claiming that “[h]undreds of thousands of individual DACA recipients, along with their employers, states, and loved ones, have come to rely on the DACA program.” Based on this flawed reasoning, Hanen concludes:

Given those interests, it is not equitable for a government program that has engendered such a significant reliance to terminate suddenly. This consideration, along with the government's assertion that it is ready and willing to try to remedy the legal defects of the DACA program indicates that equity will not be served by a complete and immediate cessation of DACA.
 
Establishing a “reliance interest” for an illegal program for illegal aliens takes the winds out of the sails of advocates for the rule of law. As a result, the current DACA population continues to keep their (illegal) benefits (although no new applications may be approved), making Hanen’s ruling yet another mostly symbolic victory.

With certain Republican senators already expressing a willingness to amnesty the DACA population, despite similarly concluding that the program is unlawful, it remains to be seen if the Democratic leadership will now entertain a narrower bill in light of Judge Hanen’s ruling.