The Supreme Court on Tuesday granted certiorari in United States v. Texas, the case involving President Obama’s plan to implement the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program (DAPA). This case, which deals with the scope of the president’s authority to suspend deportations of illegal aliens, could have major implications for standing doctrine and presidential powers under the Constitution.
Back in 2012, the Department of Homeland Security (DHS) announced the Deferred Action for Childhood Arrivals (DACA) program. In announcing DACA, DHS explained that — pursuant to its “prosecutorial discretion” — it would only proceed with deportation against certain young people who have not legally immigrated to the United States if five criteria were met.
Furthermore, DHS set up an application process to allow individuals to apply for and obtain something like a declaratory judgment by DHS that they qualified for this “deferred action.”
In 2014 DHS created DAPA, which expanded the DACA program to cover adults with citizen children, or with children who qualify for DACA.
Now, this “lawful presence” granted by DACA/DAPA never guaranteed an enforceable right to remain in the United States. DACA/DAPA beneficiaries remain in violation of U.S. immigration law.
But under DACA/DAPA, DHS made a promise that it would not enforce the lawagainst these classes of people, amounting to 1.2 million qualifying persons under DACA and 4.3 million qualifying persons under DAPA. DHS is also granting them Employment Authorization Documents, or work permits, which these individuals would not otherwise be entitled to.
This class-wide suspension of the nation’s immigration laws under the DACA/DAPA program struck many people as a flagrant violation of the president’s duty to “take care” that the law be faithfully executed under Article Two, Section Three of the Constitution. In fact, a number of states sued the federal government to block DAPA.
According to the states, the promise not to prosecute under DAPA has binding downstream legal consequences, as “lawful presence” entitles individuals to certain benefits, including the right to obtain a driver’s license and to receive certain unemployment compensation. The states claim these benefits result in states incurring enormous costs in law enforcement, education, and health care.
A federal judge in Texas did issue a preliminary injunction in February 2015, blocking DAPA, and the Fifth Circuit upheld that injunction on appeal this past November.
Importantly, these rulings were limited to whether the DHS action in promulgating DAPA violated the Administrative Procedure Act (APA) by not complying with statutorily required “notice and comment” rulemaking, and whether an injunction had been properly issued.