The legal status of DACA can be compared to a Russian matryoshka. A federal judge declared it illegal 2021; it still operates; and when the Supreme Court will receive it for review is uncertaion.

Deferred Action for Children Arrival was created on June 15, 2012 not by Executive Order of President Obama bur rather by a Department of Homeland Security  memorandum, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” issued by: Janet Napolitano, Secretary of Homeland Security.

On July 16, 2021, in State of Texas, et al. v. United States of America, et al, The United States District Court for the Southern District of Texas, Brownsville Division (Judge Andrew S. Hanen) ruled that the DACA program was illegal because admininistrative memoranda from DHS were not intended for such a broad scope, and because the program violated the Administrative Procedures Act.

In response, the Biden administration undertook a cure. It e-established DACA in federal regulation (8 C.F.R. §§ 236.21 – 236.25); kept the same eligibility criteria as the 2012 memo; clarified that DACA does not confer lawful status, but provides deferred action and work authorization, and created a clearer administrative record to defend the policy in court.

But in September 2023 Judge Hanen again ruled that the program was defective. Among his objections was that DACA exceeds the powers Congress granted to DHS under the Immigration and Nationality Act. Congress never authorized DHS to grant “deferred action” and work authorization to such a broad class of undocumented immigrants. The government had “creates a program that Congress has repeatedly declined to enact.”

But Hanen allowed the program to continue for persons already enrolled – about 540,000. Had the Administration been permitted to continue enrollment and to broaden eligibility, over one million would be enrolled as of the fall of 2025.

On appeal by the plaintiffs, the Fifth Circuit on January 17, 2025 found that the DACA regulation is unlawful but limited the scope of its ruling to Texas and maintained a stay to allow current DACA recipients to continue renewing their benefits while the litigation continues. The Appeals court expressed caution noting that the welfare of many persions was at stake,

The case is not yet ripe for an appeal to the Supreme Court. The program has been operating for over a dozen years, efficiently, without scandal, and with broad public support. I suspect The SC doesn’t want to touch this box of explosives.