Proposed rule seeks to preserve DACA

WASHINGTON — The Biden administration Monday renewed efforts to shield from deportation hundreds of thousands of immigrants who came to the U.S. as young children, the latest maneuver in a long-running drama over the policy’s legality.

The administration proposed a rule that attempts to satisfy concerns of a federal judge in Houston who ruled in July that the Deferred Action for Childhood Arrivals program was illegal, largely because the Obama administration bypassed procedural requirements when it took effect in 2012. The new rule mirrors the Obama-era initiative, re-creating the 2012 policy and seeking to put it on firmer ground by going through the federal regulatory process.

U.S. District Judge Andrew Hanen, an appointee of President George W. Bush, said the Obama administration overstepped its authority and did not properly seek public feedback. He allowed for renewals to continue but prohibited new enrollments. The Biden administration is appealing.

The 205-page proposal solicits public feedback to address Hanen’s concern, though it is unclear if that would be enough. The proposed regulation will be published Tuesday in the Federal Register, triggering a 60-day comment period and ensuring that it is unlikely to take effect for several months.

The office of Texas Attorney General Ken Paxton, who challenged DACA with eight other states before Hanen, did not immediately respond to a request for comment.

The Obama administration created DACA with a memo issued by then-Homeland Security Secretary Janet Napolitano. It was intended as a stopgap measure until Congress legislated a permanent solution, which never occurred.

Because DACA isn’t the product of legislation, it falls into a category of policies that can more easily be changed from one administration to the next. President Donald Trump tried to rescind the DACA memo and end the program, but the Supreme Court concluded he did not go about it properly.

In attempting to shore up DACA through a formal rule — which is a more rigorous process than the original memo, though still not legislation — the Biden administration hopes to gain a legal stamp of approval from the courts.

It seems possible, if not likely, that the Supreme Court will again be called upon to weigh in, unless Congress acts first.

The administration’s move comes as congressional Democrats struggle to include immigration provisions in their 10-year, $3.5 trillion package of social and environment initiatives. Language in that bill helping millions of immigrants remain permanently in the U.S. has been a top goal of progressive and pro-immigration lawmakers, and Democrats cannot afford to lose many votes.

But the Senate’s nonpartisan parliamentarian said this month that the immigration provisions couldn’t remain in the sweeping bill because it violated the chamber’s budget rules.