As Fifth Circuit Prepares to Declare DACA Illegal, the White House Aims to Take Executive Action to Protect the Program

In the coming days, the Fifth Circuit Court of Appeals will decide the fate of the Deferred Action for Childhood Arrivals (“DACA”) Program, which protects from deportation over 600,000 people living in the United States. As the panel of conservative judges is expected to overturn DACA, the White House is preparing to take executive action to protect it. While the executive action will provide temporary relief, significant questions remain about the longevity of the program absent legislative intervention.   

What is DACA?

The DACA program originated from an earlier immigration proposal known as the DREAM Act, which sought to provide lawful status to those who entered the country illegally as children. When Congress failed to pass the DREAM Act multiple times from 2007 to 2013, President Obama sought executive action to address the issue of increasing numbers of children in the United States without lawful status. 

On June 15, 2012, in the Rose Garden of the White House, President Obama announced the DACA program. The executive proposal used the prosecutorial authority of the Department of Homeland Security to defer removal of certain individuals who were deemed to be a “low priority” for immigration enforcement. While the program does not grant official legal status or a pathway to citizenship, it allows beneficiaries to obtain work authorization, a social security number, and a driver’s license. Despite legal challenges, the program has survived and has found new support under the Biden Administration.

Southern States Sue to Stop DACA

After the Trump administration failed to end the DACA program, a group of Republican state attorney generals filed suit in the Southern District of Texas seeking a complete end to the program. The states maintained the DACA program violated federal law, was promulgated without proper rulemaking procedures, and imposed costs to the states. After Judge Andrew Hanen’s July 16, 2021, ruling holding DACA to be unlawful, the program ceased taking new applications. Since then, the case has been appealed to the Fifth Circuit Court of Appeals, where it remains under consideration. That said, legal experts predict the conservative Court will declare the program to be illegal.

President Biden Contemplates Executive Intervention to Preserve DACA

A recent article from NBC News explains that President Biden is seeking executive action to protect the hundreds of thousands of individuals protected under the DACA program. While the Biden administration can appeal the decision of the Fifth Circuit, the Supreme Court has indicated it would uphold that decision, leaving more than 600,000 individuals without legal protection from removal. 

Any Executive Order by the Biden administration will likely direct Immigration and Customs Enforcement to deprioritize the removal of DACA recipients unless they are deemed threats to public safety or national security. However, any executive action can easily be undone by subsequent presidents, and therefore provides only temporary protection. 

Accordingly, the thousands of individuals protected under DACA remain in a state of limbo nearly ten years after the program was started. Absent some form of legislative action, the “Dreamers” face an uncertain future as pawns in a larger political battle. 

To learn more about this blog post, or if you have any other immigration concerns, please feel free to contact me at or (484) 544-0022.

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