Joe Biden wants the current Deferred Action for Childhood Arrivals (DACA) laws codified. Nine states are suing to stop that from happening.

U.S. District Judge Andrew Hanen for the Southern District of Texas agreed with the states and declared the DACA program illegal Wednesday. Hanen, appointed by President George W. Bush in 2002, said the current revised version of the DACA policy that prevents the deportation of hundreds of thousands of illegal aliens brought to the United States as children is still illegal. His ruling will likely be appealed to the Supreme Court, which will be the third time DACA’s fate has been left to the Supreme Court.

Hanen barred the government from approving any new applications on Wednesday but left the program intact as it exists during the appeals process, which is expected. No action is necessary from the federal government against DACA recipients.

In 2012, then-President Barack Obama, the man alleged to be a Constitutional scholar, said that he had no authority to circumvent Congress at the time to put the DACA program into effect. He did it anyway because it was a sop to Hispanic voters during his re-election campaign. Since then, DACA has been legally challenged.

Nine states, including Texas, argue that Obama did not have that authority in the first place in 2012. In 2021, Judge Hanen declared the program illegal because it had not been subject to public notice and comment periods that are required under the federal Administrative Procedures Act.

The Biden administration tried to revise the original version of DACA in order to satisfy Hanen’s concerns. A new version of DACA took effect in October 2022 and it was subject to public comments as part of a formal rule-making process. The revised version was ruled illegal by Hanen. He said DACA is unconstitutional and it is up to Congress to enact legislation shielding people under this program, often referred to as ‘Dreamers.’ Hanen ruled that the states had standing to file their lawsuit because they have been harmed by DACA.

The harm experienced by the states in the lawsuit includes spending hundreds of millions of dollars in health care, education, and other costs for services for illegal immigrants. The states, besides Texas, include Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.

At the end of March, according to U.S. Citizenship and Immigration Services reported that there were 578,680 people enrolled in DACA. As I mentioned above, the judge is allowing the program to remain intact but there can be no new applications taken while the appeals process moves forward.

Defenders of DACA say there is authority given to DHS by Congress to set the policy.

Those defending the program — the federal government, the Mexican American Legal Defense and Educational Fund and the state of New Jersey — had argued the states failed to present evidence that any of the costs they allege they have incurred have been tied to DACA recipients. They also argued Congress has given the Department of Homeland Security the legal authority to set immigration enforcement policies.

The roller coaster of court challenges continues.