Over the summer, federal district court judge Andrew Hanen ruled that President Obama’s executive amnesty program known as Deferred Action for Childhood Arrivals (DACA) is illegal. In his ruling, which highlighted the economic harm to Americans by letting illegal aliens work, Judge Hanen easily found that DACA’s creation through a three-page memorandum issued by former DHS Secretary Janet Napolitano violated the notice and comment rulemaking requirements of the Administrative Procedure Act (APA). But Judge Hanen’s ruling also made clear that DACA violates substantive immigration law, meaning that implementing DACA through regulation could not cure this legal defect.
Several weeks after Judge Hanen’s ruling, I noticed that DHS had sent a DACA proposed regulation to the White House’s Office of Information and Regulatory Affairs (OIRA), the final stop before a (proposed) regulation is published. This led to an August 13 post, where I asked: Is DHS pursuing a DACA regulation in violation of Judge Hanen's ruling? We got our answer (yes) on September 27, when the DACA proposed regulation was published in the Federal Register.
While the proposed rule was under OIRA review, Jessica Vaughan, Jon Feere, and I participated in a meeting authorized under Executive Order 12866 with representatives from OIRA, DHS, and U.S. Citizenship and Immigration Services (USCIS). The Center’s experts used our 30 minutes to emphasize that a DACA regulation is in violation of Judge Hanen’s order and urged them to comply with the court. Understanding that DHS was unlikely to pull back this proposed regulation, we provided useful suggestions for how to “improve” the program to ensure the eligibility corresponded with the rhetoric used to describe the illegal aliens who benefit from DACA. Having skimmed the 205-page proposed rule, it does not appear that DHS heeded our advice, likely exposing themselves to great litigation risk should a state attorney general bring a lawsuit.
The public has 60 days to comment on the proposed rule, through November 29, 2021. Anyone interested in commenting can submit their thoughts here. In the meantime, all eyes will be on Judge Hanen to see how he interprets the DHS decision to publish a DACA proposed regulation.