President Obama has tried his hand at administrative reform primarily by issuing two programs to give some immigrants temporary “deferred action status” and work permits for two to three years if they have U.S. citizen children and have resided here since January 2010 (DAPA), or if they were brought here as children (DACA and expanded DACA).
For now, implementation of DAPA and expanded DACA has been blocked by the federal courts, primarily because the DHS failed to publish DAPA/expanded DACA as “proposed regulations,” and give the public 30 days to comment before implementing the directives as agency regulations.
There are several critically important steps analyzed in the attached report (view or download here) President Obama could take to better protect DACA recipients and potential DAPA recipients.
At a town hall meeting in Miami on February 25, 2015, the President announced that he would not be deterred by “one federal judge” (i.e. federal district court Judge Andrew S. Hanen in Texas who has enjoined the DAPA/ expanded DACA programs). He told the crowd that his administration will become “even more aggressive in the weeks and months to come … We’re going to be as aggressive as we can.”
Unfortunately, the Administration decided to issue DAPA/DACA as a “policy” (basically a “privilege” for applicants) that can be changed overnight by any future Administration, rather than as a formal “regulation” (also called a “substantive rule”) that extends real rights to applicants and cannot be cancelled overnight. Under the Administrative Procedures Act (APA), a federal agency must first publish a substantive rule in “proposed” (draft) form and the public must be given 30 days to comment before the regulation is finally adopted. The Administration’s refusal to issue DAPA/DACA as a DHS “regulation” has negative legal and practical consequences for millions of potential applicants.
If President Obama published DAPA/DACA as a formal regulation: (1) the legal basis for the current injunction blocking DAPA/expanded DACA would be wiped out without risking lengthy appeals, (2) DAPA/DACA would become a “substantive right” instead of a “privilege” giving applicants and recipients stronger enforceable legal rights, (3) a formal regulation will make it more difficult for a future Administration, without advance notice or the public’s opportunity to comment, to terminate the DAPA/DACA programs (and to place DAPA/DACA recipients in deportation proceedings), and(4) in proposed regulations the Administration could include statements and rules that would substantially decrease the strength of the States’ constitutional challenge to DAPA/expanded DACA.
The full report explaining the status of the Texas v. United States litigation may be viewed or downloaded by selecting this link.