- Deferred Action for Childhood Arrivals, referred to as DACA, established by President Obama in 2012, has faced years of legal challenges without any congressional action
- Texas Judge Andrew S. Hanen issued a controversial ruling on DACA, which prevents new applicants but allows for renewals
- Hanen’s ruling declared DACA unconstitutional and may be taken up by the Supreme Court
- If upheld, it could put the GOP on the defensive regarding immigration and potentially impact the 2024 elections, similar to the abortion ruling in 2022
- If the Supreme Court rejects Hanen’s decision, it might bolster the Left’s argument for presidential authority on other issues
The summer of 2022 had just begun, and the Republicans were coasting towards a landslide in the midterms just months away. Nothing was going well for the Democrats – sky-high inflation, the war in Ukraine, the mess at the Southern Border, and the Fed beginning its rate hikes were just some of their troubles.
Then, the Supreme Court inadvertently stepped into the political season with its Dobbs decision, overturning Roe, ending 50 years of federal protections for abortions, and sending the matter rightfully to the states on the power of the Tenth Amendment. The Left had been waiting for this moment, having begun preparing months earlier when an extraordinary leak from the Apex court revealed the thinking of its conservatives.
The Left’s drumbeat messaging never stopped for the next four months – that the GOP would take away a woman’s freedom to choose. It was dishonest because a GOP Congress couldn’t pass an abortion ban in Washington without support from the Democrats. Besides, the Supreme Court had just sent the decision to the states, making Washington a mostly irrelevant player.
The trick worked. What looked like a landslide loss turned out to be a whimper, with the GOP barely winning a majority. Exit polls showed that women and Independents flocked to Democratic candidates at the last minute, ignoring the failure of the Biden administration on all fronts. Abortion has always been a decisive emotional factor in elections.
History will likely repeat during the crucial 2024 election season next year. A Texas judge, Andrew S. Hanen of the Federal District Court in Houston, who has been a thorn among Leftist activists because of his rulings on immigration, came out with another contentious issue. He ordered that the Biden administration can no longer accept DACA applicants after July 16, 2021, but current DACA applicants can continue to renew their registrations. It was a blow to the Biden administration, whose immigration policy has been the worst disaster in recent memory. For America, which is billed as the land of immigrants, immigration is another decisive emotional factor in elections.
At issue is the Deferred Action for Childhood Arrivals program, or DACA, which then-President Obama created by executive order in 2012. DACA bestowed benefits to hundreds of thousands of young people who crossed the border illegally, mostly with their parents, by allowing them to receive work visas and stay in the country while Congress determined their fate. It was a remarkable executive order, given its broad reach. With the stroke of a single pen, President Obama had remade immigration law.
For the last eleven years, the program has been litigated by everyone involved – executive branches of three administrations, conservative states, and immigration activists – but Congress has stayed silent. In January 2018, President Trump had an excellent chance of getting a Democratic Senate to pass a DACA bill in exchange for $20 billion in funds for his wall – but he overreached, and the deal fell through.
American governance is littered with examples of how failures to negotiate among our leaders can create catastrophic consequences. Had Trump accepted the deal, the DACA recipients would have received Congressional relief, giving them certainty for life. There would not have been a government shutdown at the time. And most importantly, the wall would have been built with Congressional authority, saving America from the open borders policy pursued by President Biden, under whose watch, more than six million new illegal arrivals have scattered throughout the country and flocked to the cities, devastating urban populations and forever changing the fabric of American life.
In hindsight, Trump’s biggest failure as president was to push too hard on his main priority and not accept Senate Majority Leader Chuck Schumer’s offer.
This week’s ruling was not the Texas judge’s first decision on DACA. In 2021, he ruled that DACA was illegal because the Biden Department of Homeland Security had failed to follow proper administrative procedures when it issued new DACA procedures. But the judge had withheld his opinion on the merit of the case.
After being directed by the Fifth Circuit Court of Appeals, Judge Hanen last week found that the entire DACA rule was unconstitutional because President Obama overstepped his authority without seeking Congressional approval: “The executive branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void.”
The matter will likely go to the Supreme Court. If the Court accepts the case, which is likely, a decision is expected in June 2024, as convention season is in high gear.
As we have noted, the Biden administration has had a terrible record of losing at the Supreme Court whenever it has attempted to assert boundless executive authority. The Court has sided with landlords in the CDC case when it tried to extend eviction moratoriums during Covid-19. In West Virginia v. The EPA, the Court ruled 6-3 that Congress, not the EPA, has the power to regulate emissions from existing power plants.
If the Supreme Court upholds Judge Hanen’s decision – and based on his brilliant legal mind and court precedent, there is a high likelihood that Hanen’s decision will prevail in a court with a conservative majority – the Left will milk the public sympathy for DACA recipients who may be at risk of being deported after being here for nearly 12 years. The debate can potentially put the GOP on the defensive on immigration.
If the Supreme Court rejects Hanen’s decision and finds that presidents can issue broad executive orders without consulting Congress, it will bolster the Left’s case for the president to overreach on his other priorities, such as student loans and the environment.
It is a Win-Win situation for Democrats, all thanks to a single judicial ruling from Texas.
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Republished with permission from TIPP Insights