The US Department of Justice filed an appeal on Friday with the US Court of Appeals for the Fifth Circuit challenging a lower court ruling in July blocking new applications to the Deferred Action for Childhood Arrivals (DACA) program.
DACA was started by the Obama administration in 2012 and allows individuals brought to the US as children to request deferred action and work authorization. Deferred action is a use of prosecutorial discretion to defer removal of an individual for a certain period of time and does not provide lawful immigration status. Nine states sought an injunction challenging DACA arguing that the program created an economic burden on the states by pitting DACA recipients, who are eligible for work authorizations, against citizens and permanent residents for jobs and other benefits.
The lower court ruled in favor of the states holding that the creation of the program violated the Administrative Procedure Act (APA) by not properly following notice-and-comment rulemaking procedures in order to adopt DACA in the first place. The court also held that DACA failed the first step in Chevron USA v Natural Res. Def. Council because Congress never delegated to DHS the authority to adopt DACA and that by awarding “lawful presence and work authorization to 1.5 million aliens for whom Congress has made no provision,” DHS crossed the line from administering laws passed by Congress to enacting its own legislative policy.
The order did not immediately end DACA for those already utilizing the program, but it prevents the government from approving new applications. There are now more than 50,000 people who applied for the program but cannot be approved until the matter is resolved by higher courts.