Some were surprised when U.S. District Court Judge Andrew Hanen ruled that Barack Obama’s DACA program was created illegally. I don’t think Obama was. He knew he was exceeding his authority when he created it.

On Oct. 25, 2010, when groups supporting rights for undocumented immigrants asked Obama to unilaterally implement immigration reform, he said, “I’m president, I’m not king.”

Six months later, he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case. … There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”

Nevertheless, during the summer before he ran for a second term, he established the DACA program, which suspended deportation for roughly one million undocumented immigrants.

Then, after the drubbing his party took in the 2014 midterm elections, he expanded DACA and established the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

Opponents of DAPA and the expanded DACA program obtained a temporary injunction stopping these programs, which in 2016 was affirmed by the Supreme Court in United States v. Texas.

DHS terminated these programs pursuant to a settlement agreement before a final decision could be issued on their legality.

DACA didn’t follow the rules

The plaintiffs argued that DACA was improperly established by a memorandum without undergoing the notice and comment rule making procedures required by section 553 of the Administrative Procedures Act (APA).

The defendants argued that the memorandum was just a general statement of policy and therefore was not required to comply with the APA’s rulemaking requirements.

A general statement of policy just advises the public of the manner in which the agency issuing it proposes to exercise a discretionary power. It does not impose rights or obligations, and it leaves the agency and its decision-makers free to exercise discretion.


Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at