The Highest Court Appeared Divided in the High Stakes Case, United States v. Texas

At this time the United States Supreme Court is considering a major immigration case, United States v. Texas. At the oral argument held on April 18, 2016, the Court was divided on whether President Obama’s immigration plan is legal and whether the States have standing to sue the federal government in this case. However, if the Supreme Court decides that President Obama should not be permitted to implement this immigration plan, millions will remain undocumented, subject to a lower quality of life and an inability to legally work. Many more will be separated from their families through deportation proceedings, and in the future, the States could possibly prevent and block federal laws and policies, as it is attempting to do in this case. I think the stakes are pretty high but unfortunately the Court seemed divided at the oral argument. If the decision ends in a four against and a four in favor of President Obama's immigration measures, the injunction on the DACA and DAPA executive action will be upheld, which would further delay a resolution to the pressing issue of undocumented immigrants in the United States.

This case stems from President Obama’s 2014 executive action, which authorized the expansion of Deferred Action for Childhood Arrivals (DACA) and introduced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Shortly after the issuance of the expanded DACA and DAPA, twenty-six States filed suit in the Southern District of Texas to prevent the implementation of the expanded DACA and DAPA. The district court found in favor of the States and issued a preliminary injunction, preventing the federal government from accepting applications under the expanded DACA and DAPA. The government appealed to the Fifth Circuit. However, the majority in the Fifth Circuit upheld the district court’s decision. The federal government then filed a petition of certiorari with the Supreme Court, which is now considering the case. 

Brief History of DACA and DAPA

With Congress refusing to agree on action for immigration reform and with the fate of millions of undocumented individuals hanging in the balance, President Obama enabled families to stay united and provided many undocumented individuals the opportunity to seek legal presence in the United States through the expanded DACA and DAPA. These measures were intended to prevent certain undocumented immigrants from being deported and instead provided them an avenue to gain work authorization and legal status for a few years.

DACA (2012): This program currently enables children brought to the United States under the age of 16 to gain lawful presence for 2 years and the ability to apply for work authorization if: they were under the age of 31 and had no lawful status as of June 15, 2012; continuously resided in the United States since June 15, 2007, up to the present time; met certain educational or military requirements; had no convictions for certain crimes; and posed no national security threat. This program is still available to those who are eligible. However, President Obama tried to expand DACA in 2014 to make it available to many more. The expanded DACA is now on hold pending the outcome of this case.

The Expanded DACA (2014): This expanded program extinguished the “under 31” age requirement of the original DACA and extended the lawful presence from 2 years to 3 years. There is a current injunction on this program due to this case.

DAPA (2014): This program was meant to provide relief from deportation to undocumented parents of U.S. Citizens or LPR children if: the parents lived in the United States continuously since Jan. 1, 2010, up to the present time; were physically present and undocumented in the United States on Nov. 20, 2014, and at the time of making the DAPA request; had, on Nov. 20, 2014, a son or daughter, of any age or marital status, who is a U.S. citizen (USC) or lawful permanent resident (LPR); and had no conviction for certain crimes or pose no threat to national security.This is also on hold pending the outcome of this case. The USCIS provides more information about DACA and DAPA.

According to the American Immigration Council, DACA has helped 700,000 individuals become documented in the United States and DAPA could help an additional 3.7 million undocumented immigrants stay united with their U.S. citizen or LPR children, gain proper work authorization and contribute to the U.S. economy. Furthermore, with no relief, and when some parents have been deported due to undocumented status, the children suffer irreparable harm. The American Immigration Council cited another horrific statistic that reveals the awful reality when families of illegal immigrants are separated due to deportation; a study by Race Forward showed more than 5,100 U.S. citizen children were placed in foster homes due to the deportation of parent(s) in 2011. Despite these horrific effects of deportation and President Obama’s effort to curb the trauma to families, the States  have argued that such policy was illegal and would cause further harm to them.

A Summary of the States’ Arguments

The American Immigration Council has succinctly broken down the arguments of both sides. The twenty-six States have argued that President Obama violated the “Take Care” clause in the Constitution to faithfully execute the laws by making unlawful conduct lawful. The States also argued that President Obama’s executive action violated the Administrative Procedure Act (APA) because it was “arbitrary and capricious,” was not in compliance with immigration law and did not adhere to the technical procedural requirements which included notice-and-comments rule making  The States have explained that if the federal government implements the expanded DACA and DAPA, Texas will lose money for each subsidized driver’s license due to the increased numbers of immigrants applying for the license. The district court’s issuance of the preliminary injunction, and the Fifth Circuit’s affirmance of the preliminary injunction were based the APA argument.

A Summary of the Federal Government’s Arguments

The federal government argued that the states did not have standing because the driver’s license subsidized cost incurred by Texas was an “indirect” and “incidental” effect of DACA and DAPA, which was “self-generated.” The federal government has also pointed out that it has traditionally had the discretion to defer deportation; and they are using such discretion to create the expanded DACA and DAPA.

At the Oral Argument: The Supreme Court Appeared Split

The oral argument at the Supreme Court on April 19, 2016, was the first hint of the divided position of the Supreme Court justices. Chief Justice Roberts and Justice Kennedy seemed skeptical regarding President Obama’s authority to implement the DACA and DAPA. According to the New York Times Article, Chief Justice Roberts asked, “Could the president grant deferred removal to every unlawfully present alien in the United States right now?” While the New York Times quoted Justice Kennedy’s statement regarding his opinion, “What we’re doing is defining the limits of discretion. . . And it seems to me that that [Obama’s DACA and DAPA] is a legislative, not an executive act.” Justice Kennedy made this statement even though the federal government has traditionally had the discretion to defer deportation. On the other hand, Justice Sotomayor acknowledged that “nearly 11 million unauthorized aliens are here in the shadows.” And “[t]hey’re here whether we want them or not.” In the transcript from the oral argument, Justice Breyer also pondered on the possibility that the courts could be inundated with lawsuits for "every case of political disagreement where States disagree" with federal policy. 

Worst Case Scenario If the Court Sides With the States

If the States prevail in their argument that President Obama’s executive action harms the states, then this would question the very essence of existing constitutional law and the deference given to the executive branch to enforce federal policies. This could lead States to file suits challenging all sorts of federal laws based on a disagreement with the federal policy underlying the federal law. Such an effect could hinder the federal government’s ability to implement policy efficiently, without delay and hindrance.

Furthermore, the most important and devastating cost of this nightmarish outcome would be the undocumented individuals at the center of this. They would be left in limbo. Undocumented parents of U.S. citizens would still live in fear of being deported, of being forced to leave their children behind. And the many more who could benefit from the expanded DACA would also face deportation; forced to go to a country that they have not known since childhood.

So let’s hold our breaths, hope and pray that the Supreme Court makes the right decision for the sake of so many who currently suffer "in the shadows".


Disclaimer: The information on this blog is for informational purposes only and is not legal advice nor does it establish an attorney-client relationship.