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Judge Issues Nationwide Order to Restore DACA

On August 3, 2018 a federal judge ordered the federal government to fully restore the Deferred Action for Childhood Arrivals (DACA) program. The decision will go into effect across the country on August 23, 2018—unless the government appeals (which it is likely to do). The decision arose from a lawsuit following the Trump administration rescinding the DACA program on September 5, 2017.

The court’s decision has been criticized by opponents as an example of judges overstepping the executive branch—against the separation of powers doctrine. The court directly addressed this point in the opinion:

“The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do.”

If and when the order takes effect, both new and prior applicants should be eligible for DACA benefits.

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