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Supreme Court to Decide Obama’s DAPA & DACA Immigration Plans

by | Jan 23, 2016 | Ida Keir Law, Immigration Reform, News Archive, Unlawful Presence/DACA

The Supreme Court will soon decide whether millions of parents and children can apply for temporary relief from deportation, and for work permits, under Obama’s DAPA and DACA plans. The Court will hear arguments in the case of United States v. Texas in the spring and a decision is expected by the end of June. The case concerns President Obama’s immigration executive actions announced in November 2014. The decision will have significance beyond immigration law because it challenges the scope of the president’s executive authority.

Here’s a relatively brief explanation of the case and links to more information.

  1. The programs are called DAPA and expanded DACA; over 4 million people are expected to be eligible for temporary relief from deportation and work permits under these programs. All have been in the U.S. since they were children (“Dreamers”) or are the parents of U.S. citizens or lawful permanent residents (green card holders). The programs do not provide green cards or a path to citizenship for anyone.
  2. The Secretary of the Department of Homeland Security aka “The Secretary” says DAPA and DACA help the government’s focus its very limited Congressionally-budgeted resources on the removal of high-priority foreign nationals who endanger public safety instead of parents and children who do not (to be determined individually).
  3. Texas and 25 other states sued the federal government and so far have blocked the programs going into effect.

On Jan. 19, 2016, the Supreme Court agreed to hear the case. The four issues, including whether the policy itself is unconstitutional (#4 below) are:

  1. whether the states have “standing” to sue the government, and specifically “whether a State that voluntarily provides a subsidy to all aliens with deferred action has standing to sue.” In order to sue another party in our courts, you must show you will suffer concrete harm or injury. Texas says these programs will cost the state money because Texas law makes foreign nationals who are “lawfully present” eligible for driver’s licenses and the state subsidizes the cost of a driver’s license. The federal government responded that Texas is free to alter or eliminate its subsidy. If the court decides Texas has standing, does this mean that any state can voluntarily pass laws to create a “concrete harm” that it can then use to challenge federal laws? This would be very far-reaching and could lead to endless challenges by states.
  2. whether the guidance is arbitrary and capricious or otherwise not in accordance with law. The states say Congress “has created a detailed, complex statutory scheme for determining when” someone can enter and stay and work in the country, and that Congress intended that discretion to be exercised case-by-case basis, rather than by enacting a sweeping policy that will allow four million people to stay in the country and work here.” The federal government argues Congress has only budgeted enough to deport a small number of those here without authority, and points to many instances of allowable discretion. Also, DAPA and DACA allow millions to apply, but each case is still decided individually rather than by blanket approval.
  3. whether the government had to comply with the Administrative Procedure Act (APA) and allow Texas and other states to participate in notice-and-comment procedures. Texas says it should be allowed to so participate. The Secretary argues notice and comment do not apply because the relevant law, the Immigration and Nationality Act, provides the feds with authority to set immigration enforcement policies itself, and also because the DAPA and DACA plans are subject to agency discretion which is excepted from APA notice and comment.
  4. whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3 which requires the president to take care that the laws of the United States are faithfully executed. The states say the President’s actions violate his constitutional duty to enforce existing immigration laws that mandate the deportation of immigrants who entered the country illegally. The Secretary argues he cannot deport each such individual and must set priorities, which in this case follow prior lawful governmental actions and cases.

Links to more information – in plain English:

Links to more information – mostly legalese: