US Supreme Court to hear case against executive action on immigration

The future of DAPA and expanded DACA is unclear.

On April 18, 2016, the U.S. Supreme Court will hear oral arguments in a lawsuit challenging President Obama's executive action on immigration. The outcome of the attempt by 26 states - led by Texas - to quash the president's expansion of DACA and establishment of DAPA is far from certain.

DACA and DAPA

In June 2012, federal immigration authorities began accepting applications for the Deferred Action for Childhood Arrivals program, known as DACA. Eligible DACA applicants are granted two years of deferred action from removal, which means that U.S. Citizenship and Immigration Services or USCIS will not take action during that time to deport them. Work permits are also available during deferment.

DACA relief is aimed at younger undocumented immigrants who were brought to this country as children, who have lived lives free of serious crime and who meet particular military or educational requirements.

In November 2014, President Obama announced that he was using his power as the nation's chief executive to expand the pool eligible for DACA and to lengthen the relief period to three years. He also ordered the launch of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA that would grant a period of deferred action and work authorization to eligible law-abiding parents of citizens and lawful permanent residents.

The lawsuit

Almost immediately, the coalition of states filed a lawsuit in U.S. District Court in Brownsville, Texas, claiming that the President had exceeded his authority. In February 2015, Judge Andrew Hanen issued a nationwide order enjoining the programs until the suit could be heard. This injunction was upheld by the U.S. Court of Appeals for the 5th Circuit in November 2015 and the U.S. Supreme Court agreed in January 2016 to hear the case on its merits.

Issues before the Supreme Court and impact of Scalia's death

On April 18, 2016, eight Supreme Court justices - one less than a full court because of the sudden death of Justice Antonin Scalia in February 2016 - will hear arguments in the case. The issues to be decided are:

  • Did the states have standing or the legal right to file the lawsuit?
  • Did the president exceed his authority?
  • Should the president's actions have been subject to the same public notice-and-comment requirements as federal regulations?
  • Did the president violate the constitutional requirement that he take care to faithfully execute the law?

The death of Justice Scalia created the possibility that this case could result in a tied 4-to-4 decision, since the Republican-controlled U.S. Senate has made it clear that it is in no hurry to confirm President Obama's appointment of federal Judge Merrick Garland to replace Scalia. A tied decision would leave standing the lower court order freezing implementation of DAPA and expanded DACA pending trial. It is unlikely that a trial could be concluded before the next president takes office, so the matter could become moot if the new president decides to rescind President Obama's order.

Talk to a lawyer

As of this writing in April 2016, applications and renewals are still being processed for the original DACA program. Anyone considering filing an application should seek legal advice and assistance from an attorney. The application and required documentation are complicated and there is little opportunity for review of a denied application, so a complete and correct application is important.

Attorney David J. Trevino of Trevino Immigration Law in San Antonio, Texas, represents clients in removal defense, with DACA applications and renewals and in a wide array of other immigration matters.