Update on Obama Executive Action/DAPA from the Supreme Court

This last week, the Supreme Court heard oral arguments on the signature immigration case involving the undocumented community, United States v. Texas.

The litigation started when President Obama announced he was using his executive authority to expand Deferred Action. Deferred Action derives from the executive’s legal authority to enforce immigration law. Since at least 1956, every U.S. President has granted temporary immigration relief to one or more groups in need of assistance. Like his predecessors, President Obama is not providing a permanent legal status to anyone – only Congress is able to do that.

He first initiated a specialized Deferred Action program called Deferred Action for Childhood Arrivals (DACA), in 2012, allowing young undocumented high school graduates to apply. About 640,000 undocumented youth have taken advantage of this program which has allowed them to get legal work authorization, driver’s licenses, bank accounts, credit cards and pay taxes due to a better ability to make a legal income. In November 2014, Mr. Obama announced a similar program called Deferred Action for Parenthood Accountability (DAPA) that would apply to undocumented persons who had US citizen or LPR children in the United States as of the announcement. This new extension could impact up to 5-6 million individuals.

The state of Texas and 25 other states have sued based on the alleged financial impact of having to handle a large number of individuals who would now be eligible for a driver’s license and the cost of driver’s licenses to the state. The 5th Circuit court upheld the original court’s decision to agree with Texas. It is now up to the Supreme Court to make a final decision.

Oral arguments are an interesting time because you can see what types of questions the judges are asking and get a better ‘read’ on what their positions might be. It is clear the more liberal side of the court – Justices Breyer, Ginsburg, Sotomayor, and Kagan – will likely be in favor of overruling the 5th Circuit in favor of President Obama’s authority to issue the executive action. There are only two of four conservative judges that could possibly vote in President Obama’s favor – Chief Justice Roberts and Justice Kennedy. Judges Alito and Thomas are clearly against.

What is interesting was that during oral arguments, Justice Kennedy was not happy with the fact that millions of people with such a quasi-status or “lawful presence” would be given work authorization. Also, Justice Roberts asked a lot of questions about standing – meaning Texas and the states’ ability to even bring forth a claim at all. There is a good argument to throw the case out on standing grounds because the harm supposedly Texas is talking about is futuristic and also not a huge sum of money. Also it could be the Court’s nightmare because it would be condoning states to sue the President whenever it believed some regulation or rule it did not like would negatively impacted it in any way. Judge Kennedy actually asked questions on standing that seemed to favor the executive branch.

If Justice Roberts or Kennedy believes that Texas and the states do not have standing, then the case will get dismissed and the Executive Action will proceed. If Roberts and Kennedy join the other two against, then a 4-4 decision will result in the 5th Circuit decision holding and therefore, no Executive Action as is, could proceed. There could be more complicating nuances to either of these decisions, but this is the simplistic gist.  This is all the insight we will get from the justices until the decision comes out in mid- to late-June. I am hopeful for a 5-4 decision in favor.

For updates on DAPA and the Supreme Court case United States v. Texas, stay tuned for more blogs or call Denver attorney Catherine O Brown at 303-322-2117.