Skip to content

DACA Program Remains but Future is Uncertain After Fifth Circuit’s Decision

On October 5th, the Fifth Circuit Court of Appeals affirmed a 2021 ruling that struck down the Deferred Action for Childhood Arrivals (DACA) program. The 2021 decision by Judge Hanen of the U.S. District Court for the Southern District of Texas found that the program is illegal, stating that the Obama administration did not have the authority to institute the DACA program the way that they did – under a memorandum by the Department of Homeland Security.

The October 5th decision did not end the program — DACA recipients who are already enrolled in the program are still protected and their work authorizations are still valid. Those that are already enrolled can also continue to renew their DACA grants, however first-time applications are still not being processed.

Back in late August, the Biden administration released a new rule that codifies the DACA program into federal regulation that would go into effect on October 31st. In its ruling, the Fifth Circuit sent the case back to Judge Hanen in Texas to consider the impact of the administration’s new rule and judge its legality. The new rule has a similar structure as the current DACA program and faces similar limitations – even if Judge Hanan rules positively on Biden’s rule, it cannot provide Dreamers with permanent legal status or fully protect them from legal challenges in the future. Only Congress can fully protect Dreamers.

After the decision from the Fifth Circuit, President Biden, along with several advocacy groups, called on Congress to pass permanent protection for DACA recipients. The House already passed a bill in March of 2021 to provide Dreamers with a pathway to citizenship, but the Senate has not considered it so far. Some Democratic senators have called for Congress to pass DACA legislation during the lame duck period after the midterms but the biggest hurdle for Democrats to pass immigration legislation is the Senate filibuster – they will need all 50 Democrats and 10 Republicans to agree to a bill. So far this has seemed unlikely, but it still could be the best chance for Democrats, especially if Republicans take the majority in the House or the Senate in the next Congress.

If Biden’s rule is struck down again, further appeals are expected and DACA is expected to be heard by the Supreme Court this term or next term. This would be the third time that a case regarding the DACA program has been taken up by the Supreme Court. The first time, in 2016, the Court was deadlocked at 4-4 which ended up blocking an expanded version of DACA. The second was in 2020 when the Court ruled 5-4 that the Trump administration improperly ended DACA, which allowed it to stay in place. This would be the first time that the current, more conservative leaning Court would hear a case regarding the legality of the program itself.

UW recognizes in its 2022 Federal Agenda the need for comprehensive immigration reform which includes a permanent legal fix for DACA-eligible recipients and their families. The office will continue to monitor and provide updates on DACA in Congress and in the courts.

More information about the decision can be found here and here.

Congress Passes a CR to Fund the Federal Government through Dec. 16th

On September 30th, Congress passed a continuing resolution (CR) to extend the current funding levels for the federal government through December 16, averting a partial government shutdown and extending time for Congress to agree on and pass the funding bills for FY2023. The CR passed the Senate after Sen. Manchin (D-WV) removed his pipeline permit measure which was opposed by both Republicans and progressive Democrats. In addition to extending the current funding levels, the CR included $17 billion in emergency funding for Ukraine, $19 billion for FEMA for disaster relief, and reauthorized the Food and Drug Administration’s user fee programs, but it did not include President Biden’s request for COVID-19 and monkeypox response funding. 

Both chambers are now in recess until after the midterms after which they will have to return to reach an agreement on the FY23 funding bills. Our office will continue to monitor and publish FY23 activity.   

More information on the continuing resolution can be found here.  

Assistant Secretary for Postsecondary Education Confirmed

Late last week, the Senate confirmed Nasser Paydar as Assistant Secretary for Postsecondary Education.  He is the chancellor emeritus of Indiana University-Purdue University Indianapolis and executive vice president at Indiana University.

A statement about his confirmation from Secretary of Education Miguel Cardona is available here.

Senate Clears Reconciliation Package; House to Take It Up Friday

After a marathon series of votes on amendments over the weekend, the Senate cleared by a vote of 51-50 a version of the reconciliation budget package.  With all 50 Democrats supporting the measure and all 50 Republicans voting against it, Vice President Harris cast the tie-breaking vote.  Because the measure isa reconciliation bill, which provided it procedural protections, it could move forward in the Senate with a simple majority vote.

The House is currently scheduled to take it up on Friday.

We will provide further details about the bill  in the near future.