The battle over Deferred Action for Childhood Arrivals at a federal appeals court this week will provide the most significant test so far of how recent US Supreme Court decisions affect states’ ability to challenge federal immigration programs.
The Biden administration and a group of Republican states led by Texas will go back to the US Court of Appeals for the Fifth Circuit for oral arguments Thursday—the second time in two years that a three-judge New Orleans panel has weighed the legality of a program offering removal protections and work authorization to nearly half a million young people brought to the US as children.
A new Fifth Circuit panel will hear the case and consider the validity of DACA regulations, rather than the executive memorandum that GOP-led states previously challenged. But the most significant development since the previous appellate fight over the program centers on recent high court rulings on standing in other litigation brought by the states.
DACA’s defenders say those decisions bolster arguments that the states’ challenge should be tossed because they can’t show they were harmed by the program and thus lack standing to sue. The panel’s ruling on that issue could shape litigation over separate immigrant parole programs established by the Biden administration that are likely to come before the Fifth Circuit soon.
Jacob Hamburger, a professor at Cornell Law School, said that the arguments from states challenging the deferred action program are mostly unchanged from two years ago.
“That’s why this issue of standing has become important in this big cluster of cases we are seeing,” he said.
Long-running Litigation
A Fifth Circuit panel, comprised of one George W. Bush and two Donald Trump appointees, found unlawful in October 2022 the executive memorandum that established DACA a decade earlier—the culmination of a challenge to the program first brought by Republican states in 2018.
As part of that ruling, the panel ordered Southern District of Texas Judge Andrew Hanen, a George W. Bush appointee, to evaluate regulations issued by the Biden administration to fortify the program.
Hanen, who barred new DACA participants in 2021, struck down the deferred action rules last year and said they suffered “from the same legal impediments” as the executive memorandum. The decision, which maintained protections and work authorization for current recipients, set the stage for the latest appellate battle.
The ongoing legal clash in the meantime means continued uncertainty for more than 535,000 current DACA recipients and their families, as well as employers that have urged the appeals court to uphold the protections—among them,
More than 37,000 current recipients are employed in health-care jobs, while 17,000 work in education and another 17,000 fill roles in science, technology, engineering, and mathematics fields, according to a coalition of business groups supporting the program.
Thursday’s arguments will be heard by Judge
The Biden administration has argued that the secretary of homeland security is plainly authorized by Congress to carry out a deferred-action program and that states don’t have standing or an interest in controlling immigration. Texas and other challengers told the court that states are harmed by significant expenditures on emergency services, health care, and education stemming from the program and that they have an interest in the enforcement of federal immigration law.
The previous Fifth Circuit ruling on the program largely adopted “this very broad idea of state interest” in reviewing the DACA program, Hamburger said.
Setting Standing Criteria
No matter how the appeals court decides, the challenge to the DACA rule will go to the Supreme Court, said Thomas Saenz, president and general counsel at the Mexican-American Legal Defense and Education Fund, which represents DACA recipients who have joined the case as intervenor defendants.
Weeks before Hanen’s ruling last year, the justices issued a decision on DHS enforcement priorities that DACA’s defenders say should undercut the states’ challenge even before taking up the merits of the case. In the June 2023 decision, the high court found that Texas and Louisiana don’t have standing to sue over the executive branch’s immigration enforcement policies. In the same session, the high court rejected a challenge to the Indian Child Welfare Act, finding that Texas didn’t have standing to bring an equal protection case case against the federal government.
Even more recently, a Supreme Court decision tossing a challenge to federal curbs of misinformation underlined that states must establish standing for each claim against a program and can’t rely on “generalized assertions of harm,” MALDEF told the Fifth Circuit in July.
The appellate court’s ruling on standing in the DACA case could signal how it will handle similar arguments in litigation over one parole program for nationals of Cuba, Haiti, Nicaragua, and Venezuela, and another for immigrant spouses and stepchildren of US citizens. A challenge to the “CHNV” parole program was tossed by a Trump-appointed district court judge who found Republican states couldn’t show injury, while the government has made clear a key part of its legal defense of the program will hinge on arguments that Republican states lack standing to sue.
The recent Supreme Court precedent underline that states must show a clear injury to bring a suit, said Jeff Joseph, a partner at the immigration law firm BAL. The Fifth Circuit could help establish criteria for how states go about doing that, he said.
“I would hope that they treat this as a guiding principle and say we’re not going to nitpick in regards to standing,” Joseph said. “They could resolve that issue once and for all so we wouldn’t see these constant lawsuits every time the executive tries to do something.”
The case is Texas v. USA, 5th Cir., No. 23-40653, oral argument scheduled 10/10/24.
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