On June 23, 2016, the Supreme Court resulted in a tie vote 4-4 on whether to allow the Obama Administration’s “Immigration Plan” to be implemented.  Announced in November 2014 – and also referred to as Executive Action on Immigration or Deferred Action for Parent Accountability (DAPA), the decision was heart-breaking for about 5 million undocumented immigrants who were estimated to be eligible for the program. In addition, the Plan also expanded the current DACA program – Deferred Action for Childhood Arrivals – also known as the program for the DREAMers  – undocumented children brought to this country at no fault of their own who are now adults and can not function in our society due to their undocumented status. (The DREAM Act has been voted down by Congress or the President a multiple times so has never become a law).

Deferred Action is an immigration program with a long-standing history by which the Executive Branch (e.g. the Department of Homeland Security) can allow persons to not be deported from the US and to obtain work authorization while temporarily in Deferred Action. It is not permanent residence nor a path to residence in the future.

When President Obama announced in 2014 that the Department of Homeland Security was going to allow Deferred Action for undocumented immigrants who were parents of US citizens or legal resident children, 26 states including Texas filed a lawsuit claiming that economic harm would ensue due to costs of issuing driver’s licenses to millions of newly eligible drivers (because once a work card was obtained, a person could also obtain a social security number and therefore, a driver’s license). The US District Court in Texas agreed and put the program on hold. The case went to the 5th Circuit Court, and they also agreed with Texas and the 26 states, further delaying the program from being implemented.

The Supreme Court’s tie was likely along political lines, with the 4 more liberal justices – Kagan, Sotormayor, Breyer and Ginsburg favoring the legality of the program, with conservative justices – Roberts, Alito, Thomas and Kennedy not agreeing. The problem is the Court did something unusual and did NOT issue a decision explaining their reasoning. This makes it difficult to understand how and why the members justified their decisions for or against.

This lack of explanation could be advantageous in the future because the Court did NOT issue a precedent decision explaining why it could not be successful. On the other hand, the lack of guidance makes it more precarious in the future to decipher what the Court would think of a future program. It is likely that if the vacancy on the Court is filled by a more liberal-leaning or less conservative justice, the program could be successful even if a state re-filed a complaint. The decision does not make the DAPA forever dead.

Ideally, the Court would appear to want Congress to solve this problem instead of having the Executive Branch maxing its authority to this length to solve our nation’s immigration problems. But, these are the times we live in. Congress is not functioning and acting on immigration reform or even immigration band-aids, and that puts pressure on other branches, especially the President who is directly accountable to those who voted him into office – in favor of such reform, to try to solve problems on its own. Our democratic institutions were not structured that way, so to overhaul or modernize our immigration laws really takes cooperation amongst several branches, especially Congress and the Executive.

Any further questions about the Obama Administration programs for undocumented persons known as DAPA or DACA, please contact Boulder attorney Catherine Brown at 303-322-2117.