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The problem(s) with a federal judge declaring DACA illegal

Conservatives, eager to derail protections for Dreamers, brought their case to “one of the most viciously anti-immigrant judges in the country.” It worked.


More than a decade after Barack Obama created a landmark policy to protect young immigrants known as Dreamers, its opponents on the right are still determined to destroy it. As NBC News and the Associated Press reported overnight, they’re having some success.

A federal judge on Wednesday declared illegal a revised version of a federal policy that prevents the deportation of hundreds of thousands of immigrants brought to the U.S. as children. U.S. District Judge Andrew Hanen agreed with Texas and eight other states suing to stop the Deferred Action for Childhood Arrivals, or DACA, program. The judge’s ruling was ultimately expected to be appealed to the U.S. Supreme Court, sending the program’s fate before the high court for a third time.

In the short term, the DACA program still exists, and federal agencies are not required to do anything to the program’s many beneficiaries. That said, Hanen’s ruling blocks the Biden administration from approving any new DACA applications, and it advances a legal process that puts the program’s future in jeopardy.

But while we wait to see what appellate courts do with the case — a waiting period that will likely be incredibly difficult for many immigrant families — it’s worth appreciating how we arrived at this point.

Circling back to our earlier coverage, it was eight years ago when Republicans hoped to derail the Obama administration’s DAPA (Deferred Action for Parents of Americans) program, designed to extend protections for undocumented immigrants whose kids are American citizens. The policy’s GOP opponents knew exactly which court would be most likely to give them the outcome Republicans wanted to see.

The case reached none other than Judge Hanen, a George W. Bush appointee, who blocked DAPA from advancing. It was around this time that Ian Millhiser referred to Hanen as “one of the most viciously anti-immigrant judges in the country.” Slate’s Mark Joseph Stern also described Hanen as “one of the most notoriously partisan conservatives in the federal judiciary.”

Of course, Republicans also hoped to derail DACA, so they went back to the Southern District of Texas, where the same judge in 2021 rejected the program as illegal.

As NBC News’ report added, the Biden administration tried to satisfy Hanen’s concerns with a new version of DACA. To no one’s surprise, the conservative jurist said it’s still not good enough.

It’s a timely reminder of why Republicans have placed such an emphasis on the federal judiciary. GOP officials haven’t been in a position to legislate DACA protections away from Dreamers, but by moving the courts to the right, Republicans don’t need legislation — they simply need likeminded jurists.

The appeal in this case now heads to the 5th Circuit Court of Appeals, generally seen as the nation’s most conservative circuit.

This post updates our related earlier coverage.