SCOTUS: DACA Back on Docket, New Briefing

Updated: Jan 15

(WASHINGTON, DC): Southeastern Legal Foundation today again weighed into the DACA matter before the U.S. Supreme Court, filing an amicus brief in the latest appeal to the high court.

In 2012, the Department of Homeland Security announced the non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). Under DACA, the DHS unilaterally decided that it would no longer enforce the Immigration and Nationality Act with respect to certain illegal aliens who were brought to the United States when they were children. In other words, even though these individuals either came to our country illegally or overstayed their visas, DHS would not initiate deportation proceedings. As Southeastern Legal Foundation explains in a recent brief supporting rescission of the non-enforcement policy, “DACA can, has, and will continue to profoundly affect our nation’s immigration landscape.”

In addition to DACA, in 2014, DHS expanded DACA and provided deferred action to certain parents (DAPA) whose children were U.S. citizens or lawful permanent residents. SLF supported a challenged launched by Texas and 25 states against DACA’s expansion and DAPA, which was ultimately found to be unlawful because it violated federal immigration law did not go through the Administrative Procedure Act’s notice-and-comment procedure. Providing notice to the public and giving them a chance to comment on all substantive rules is not only required, but is a key feature of our system of government.

Recognizing that DHS never had the statutory authority to implement DACA and recognizing that DHS violated several federal laws, in 2017 DHS decided to wind down the program in a fair and balanced manner. In response, a number of states, individuals, and groups sued to keep the unlawful policy alive.

As it did with respect to expanded DACA and DAPA, Southeastern Legal Foundation filed an amicus brief supporting the rescission and discussing in detail why DACA violated the Administrative Procedure Act. As SLF explains in its brief, “Politics can shape policy, but politics must not overrun law and when it does, it is not harmless error . . . persons on both sides of the issue should have had a chance to present written verified data, differing views, and the dangers and benefits of alternative courses before DHS instituted DACA.” Because our nation’s laws require as much, DACA was unlawful from the beginning and DHS was correct to rescind it.

Click here for SLF SCOTUS brief

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