Into the legal weeds of DACA: The Biden Admin has reiterated that it intends to bolster #DACA by issuing a regulation after a notice & comment process. This will address PART, and only part, of Judge Hanen's legal critique of DACA which led to Friday's injection. THREAD 1/x
One of the legal objections to DACA has been that the Obama Admin issued it as a general policy statement (which can be done quickly), rather than giving the public notice and allowing comment, before issuing regulations. 2/x
FWIW, I explored the legal arguments with this notice & comment debate in a 2016 article. I don't think Judge Hanan is right about this, but there is clearly litigation risk here. And on this, Biden can address the problem fairly easily. 3/x scholars.law.unlv.edu/cgi/viewconten…
But Judge Hanan also thinks that, even if the notice & comment process is used, DACA would substantively violate the Immigration and Nationality Act. He's wrong. And you don't have to take my word for it. Here's one of many explanations of why. 4/x reason.com/volokh/2019/11…
But again, we're long past being able to depend on having the better of a legal argument. There is litigation risk here. And the only way to address that is through congressional action. Which Democrats in Congress have a unique opportunity to do through reconciliation. 5/end
Oh, and also people with DACA deserve way more than DACA anyway. Another reason Congress to act.
*injunction. Not injection. Obv.
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