Understanding the new development with DACA

By Cameron Vickrey

Have you seen the headlines that Biden is making DACA more permanent? This is something to celebrate! But it’s a bit more complicated than that.

Here’s the download, which I got from Elket Rodriguez, our immigration legal specialist.

In true Elket fashion, he took me all the way back to the Constitution, and then to FDR days, then to Obama, then to now. So, I’m taking you along with me. Spoiler alert: this is all really about the different levels of protection that can be provided by rulings/laws/regulations, which I knew very little about the difference between to begin with. (Now I do!)

The separation of powers, a constitutional doctrine, says: the president executes the law. The legislature codifies the law. The courts interpret the law.

During FDR’s presidency, he realized there was another layer needed to help administrate the New Deal programs he was providing and the services that were growing in demand. So, he created administrative governmental agencies.

SCOTUS allows administrative agencies under the executive branch to have legislative powers granted to them as long as Congress provides a legal framework to constrain the authority delegated to the agency.

At some point, SCOTUS differentiated the types of rules that governmental agencies can implement. Rules that would impose rights and obligations on affected third parties, outside the agency, are subject to a different process than internal agency protocols.

And internal or interpretative rule can be issued to an agency as a memorandum, statement of policy, and other guidance documents by the head of that agency.

Rules that would impose rights and obligations on affected third parties outside the agency are essentially how an agency exercises its legislative function. Those are called legislative rules, and they require a due process of announcing the rule and opening up at least a 30-day comment period to the public.

Then the agency is required to address every major argument made by the public before giving notice of the finalization of the rule. Only then, that rule has the force of law.

Under the Obama administration, DHS issued a memorandum instructing USCIS to treat a certain group of people with a different set of rules than others. This group of people are who became the Dreamers, or DACA recipients.

If you think this doesn’t make much sense as an internal memorandum than, say, “We are formally instituting jeans Fridays,” you are on to something.

More process is due. Therefore, DHS has been formalizing the process of codifying DACA into a federal rule with notice and opportunity for public comment. This will better shield DACA from litigation, and extend its protection as a formal rule.

Essentially, that is what the Biden administration announced last week. Last year, they began the notice and comment period and Biden just gave the final public notice before it becomes a rule. While this is good, and will produce an extra layer of protection for dreamers, you may have seen some feedback from people saying that we need more, that Congress needs to act.

If you are like me, you might be wondering why it feels like a good thing is never good enough. The reason this isn’t quite enough is because until DACA becomes codified into law by Congress, the administrative regulation can be repealed by future administrations. A formalized rule is better than it was before, because a future administration would have to go through this tedious public notice and comment period before being able to undo it. But it is possible, as we’ve seen with predatory lending regulations that were proposed by the CFPB during the Obama administration, but repealed by Trump appointees before they could ever take effect.

So, Congress still needs to provide a permanent solution for dreamers. Once law, it will have the backing of Congress rather than just a decision by a governmental agency.

For now, this is the most we could hope for, and we applaud Biden and DHS for seeing it through to a more protective position in our complicated system.

Did you read this all the way to the end? You deserve a sticker. I will literally send you a FSW sticker if you tell me that you read it! Email me: cameron@fellowshipsouthwest.org or text me: 704-962-5735.