A federal appeals court is set to hear arguments on Thursday over the Obama-era Deferred Action for Childhood Arrivals, or DACA, program — the latest in a years-long legal battle over whether the executive branch had the authority to unilaterally protect hundreds of thousands of children who were brought to America illegally from deportation. 

DACA, established by President Obama in 2012 through an executive order, allowed hundreds of thousands of undocumented children to temporarily stay and work in America, subject to renewals. As a coalition of Republican states and the Biden administration prepare to face off over the program and whether it was an executive overreach, the fates of some 530,000 people protected by DACA, called “Dreamers,” are in limbo.

The case is widely expected to end up at the Supreme Court, and arguments before the appeals court come as immigration has been a heated and central topic in the lead-up to the presidential election, now less than a month away. Voters have for months put immigration as among the top most important problems facing the country, and President Trump has promised to have “the largest deportation in the history of our country” if elected. 

 A three-judge panel at the Fifth Circuit Court of Appeals — made up of judges Stephen Higginson, an appointee of Mr. Obama, Edith Brown Clement, a President George W. Bush appointee, and Jerry Smith, an appointee of President Reagan — will hear the arguments in the DACA case on Thursday. 

DACA has been the subject of various litigation battles for years, including when President Trump’s administration tried to end the program in 2017, sparking lawsuits and an eventual Supreme Court review. The high court held in 2020 that the Trump administration’s decision to dismantle DACA was “arbitrary and capricious” under the Administrative Procedure Act. The court specifically said it was not weighing in on DACA’s merits but rather was addressing whether the Trump administration “complied with the procedural requirement that it provide a reasoned explanation for its action.”

Another legal challenge — and the one currently before the appeals court — was filed by Texas and a coalition of Republican-led states in 2018, arguing that the executive branch had overstepped its authority by enacting the program. The case has since been bouncing back and forth between courts. 

In 2021, Judge Andrew Hanen in the Southern Texas District Court agreed with the states that DACA was illegal. The Fifth Circuit Court of Appeals affirmed that decision in 2022 but sent it back to the district judge to determine if the new Biden administration regulations strengthening DACA’s protections made the program legal. After reviewing the case in light of the Biden administration’s new protections, Judge Hanen again ruled against DACA in September 2023.

“Litigation revolving around the legality of DACA, in one form or another, has existed for nearly a decade. While sympathetic to the predicament of DACA recipients and their families, this Court has expressed its concerns about the legality of the program for some time,” he wrote. “The solution for these deficiencies lies with the legislature, not the executive or judicial branches. Congress, for any number of reasons, has decided not to pass DACA-like legislation.” 

He added that Congress’s decision not to implement legislation “does not empower the Executive Branch to ‘legislate’ on its own.”

“The Executive Branch cannot usurp the power bestowed on Congress by the Constitution — even to fill a void,” he wrote while noting that his decision did not compel the federal government to “take any immigration, deportation or criminal action against any DACA recipient.”

Now, as the case goes before the appeals court, the Republican states are arguing that DACA “allows individuals who came to this country in violation of federal law to remain, work, and potentially become citizens” in ways that are  “manifestly contrary to” federal immigration law. 

 “Because presidents cannot unilaterally override duly enacted statutes, DACA remains illegal,” the brief from the Republican states reads. 

“Congress has used its authority ‘[t]o establish an uniform Rule of Naturalization,’” the brief notes, adding later that “Congress has never authorized the Executive Branch to unilaterally abandon this framework.” 

The Biden administration argues in its brief that the states don’t have standing to sue and that they can’t demonstrate significant harm from the program. It says that DACA, which protects children who were brought to America years ago and “know only this country as home,” allows the Department of Homeland Security to “deploy its limited enforcement resources wisely while furthering significant humanitarian interests.”

“DACA allows DHS to focus on noncitizens who threaten national security, public safety, and border defenses — individuals who are much higher priorities for removal from the United States than the law-abiding students, veterans, healthcare professionals, and other individuals who compose the DACA population,” the brief reads. It further argues that Congress has granted Homeland Security’s secretary “ broad discretion to administer and enforce the Nation’s immigration laws.”