DACA Rescission: Legal Issues and Litigation Status (CRS Report for Congress)
| Release Date |
May 23, 2018 |
| Report Number |
LSB10136 |
| Report Type |
Legal Sidebar |
| Authors |
Ben Harrington |
| Source Agency |
Congressional Research Service |
Summary:
On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum announcing
its decision to rescind the Deferred Action for Childhood Arrivals initiative (DACA), which the Obama
Administration implemented in 2012 to provide temporary relief from removal and work authorization,
among other benefits, to certain unlawfully present aliens who arrived in the United States as children. As
justification for the rescission, DHS relied upon a letter from Attorney General Sessions concluding that
DACA was illegal—specifically, that it lacked “proper statutory authority,” was “an unconstitutional
exercise of authority by the Executive Branch,” and would likely be enjoined in “potentially imminent
litigation.”
Litigation has ensued at cross purposes. DACA recipients and other parties, including states and
universities, filed lawsuits in four federal district courts challenging the rescission as unlawful. Two of
those district courts have issued nationwide preliminary injunctions that currently require DHS to
continue processing applications for DACA relief from individuals who have obtained DACA relief in the
past (renewal applicants), but not applications from individuals who would be first-time DACA enrollees.
The order of a third district court—which will go into effect on July 23, 2018, unless DHS provides new
reasoning that adequately justifies the rescission in the court’s view—would require DHS to process both
first-time and renewal applications for DACA relief. After these district court decisions, Texas and six
other states filed a separate lawsuit seeking to bar DHS from continuing to grant DACA relief. That
lawsuit could result in a preliminary injunction that contradicts the preliminary injunctions already in
place in the rescission cases. The case is before a federal district judge in Texas who in 2015 barred the
Obama Administration from implementing a different deferred action initiative to protect certain
unlawfully present aliens with U.S. citizen or lawful permanent resident children.
Collectively, the lawsuits to preserve DACA and to force its termination raise the related issues of
whether DHS offered an adequate justification for the DACA rescission and whether DHS lacks, as
Attorney General Sessions concluded, statutory and constitutional authority to administer DACA.
