Update: Supreme Court grants Certiorari in Texas v. USA
The Supreme Court has granted certiorari in Texas v. USA, and will rule on the legality of the centerpiece of President Obama’s program to lift the threat of deportation and to provide temporary work permits to an estimated 4 million undocumented individuals in the middle of a Presidential election year.
The case involves a challenge to the DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals) programs that President Obama announced last November. A group of states, led by Texas as the lead plaintiff, challenged these programs in federal district court before they could be implemented and contended that these programs exceeded the scope of the President’s authority under the U.S. Constitution and violated the Administrative Procedures Act (“APA”). The presiding federal district court judge, Andrew Hanen, agreed and enjoined the government from starting to process applications. The U.S. Court of Appeals for the Fifth Circuit upheld the injunction.
Supreme Court review is significant because these programs have been created by Executive Order and not legislation. Their continued existence after the next President assumes office in January 2017 is far from assured. The Supreme Court signaled its interest in a full consideration of the challenge several weeks ago, when it denied a request by the states to extend the briefing schedule.
In the event the Supreme Court rules by mid-June and reverses the lower courts, the Department of Homeland Security would have around 7 months to implement the DAPA and expanded DAPA programs, run background checks, and to begin issuing temporary work permits to eligible individuals before the new President steps into office. If the President’s programs are upheld, it would vastly expand the numbers of persons eligible for work authorization and Social Security Numbers. Around
Under the 2012 DACA (Deferred Action for Childhood Arrivals) program, around 800,000 young people who entered the United States as children and met other guidelines, were granted temporary work permits and temporary relief from deportation. Some states deemed them eligible for in-state tuition at universities and granted other benefits.
In a 2-1 decision, the Fifth Circuit affirmed the district court’s February 16, 2015, order granting a preliminary injunction against DAPA and expanded DACA. AILA President Victor Nieblas expressed disappointment in the decision, stating, “Once again, a Fifth Circuit panel sided with Texas and other states in a politically motivated lawsuit to challenge President Obama’s authority to exercise his constitutionally granted executive power to provide a reprieve from deportation for certain parents of American children and to expand the existing Deferred Action for Childhood Arrivals program.” Watch this AILA Quicktake with the American Immigration Council’s Legal Director Melissa Crow to learn about the next steps in the case, including DOJ’s plan to seek review at the U.S. Supreme Court. Also, AILA members can use these AILA Talking Points when speaking with media about the ongoing Texas v. United States litigation.
In a disappointing decision, a divided panel of the Fifth Circuit Court of Appeals today denied the federal government’s request for an emergency stay of a preliminary injunction that has temporarily stopped President Obama’s deferred action initiatives from being implemented.
The court’s order keeps in place the hold on implementation of these initiatives while the Fifth Circuit considers the appeal of the preliminary injunction itself. The Fifth Circuit will hear argument on the appeal in early July. The deferred action initiatives, announced last November, include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA) and could provide as many as 4 to 5 million immigrants with a temporary relief from deportation.
In the meantime, the underlying case is pending in the district court in Brownsville, TX before Judge Andrew Hanen. The case is still in the early stages of discovery.
A similar suit challenging the President’s actions filed by Maricopa County, Arizona Sheriff Joe Arpaio was dismissed by a Washington, D.C., federal court at the end of last year. It is currently on appeal before the D.C. Circuit Court of Appeals.
The Justice Department, on March 12, 2015, filed an emergency motion for a stay pending appeal, with attachments, in Texas v. United States, requesting that the Fifth Circuit Court of Appeals stay the district court’s nationwide preliminary injunction in its entirety or, at minimum, stay it with respect to implementation in states other than Texas, or states that are not parties to the suit.
On March 12, 2015, fourteen states and the District of Columbia filed an amicus brief with the Fifth Circuit in support of motion to stay district court preliminary injunction.
The federal government filed an emergency expedited motion to stay the preliminary injunction entered on February 16, 2015, which effectively halted expanded DACA and DAPA. As an alternative to staying the injunction pending appeal, the government has asked the judge to stay the injunction in jurisdictions other than Texas. More updates to follow.
President Barack Obama’s latest and boldest attempt to use his executive powers to grant quasi-legal status to illegal immigrants ran into a major road block late Monday as a federal judge in Texas barred the administration from going forward with plans for a major expansion of that drive. The White House said early Tuesday that the Justice Department will appeal the decision handed down by U.S. District Court Judge Andrew Hanen.
The President’s Executive Action would have:
- expanded the class eligible, for the Deferred Action for Childhood Arrivals (DACA) program, which previously granted temporary legal status and a work permit to persons under the age of 31 as of June 15, 2012, who had come to the United States before age 16 and had continuously resided unlawfully in the US since at least June of 2007 – the new DACA would apply to to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010.
- allowed parents of U.S. citizens and lawful permanent residents to request temporary legal status and a work permit, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.
Acting on a lawsuit brought by 26 states, Hanen ruled that Obama lacked authority to carry out much of the initiative he announced in November to allow up to five million more illegal immigrants to obtain work permits and reprieves from deportation. Obama and his aides have argued that the new drive was legally justified as an exercise of prosecutorial discretion, since immigration authorities at the Department of Homeland Security lack the funding to deport more than a few percent of the 12 million people estimated to be in the U.S. illegally. Hanen — an appointee of President George W. Bush — rejected that position.
The Texas judge’s ruling blocked both key parts of Obama’s new immigration initiative: the expansion of a program the president announced in 2012 to shield illegal immigrants who arrived in the U.S. as children and a new program giving similar “deferred action” status to illegal aliens who are parents of U.S. citizens or legal residents.
An in-depth article by Josh Gerstein of Politico breaks down what the preliminary injunction means: until the ruling is reversed or a different ruling comes down in the future, the federal government is not allowed to do anything to implement either expanded DACA or DAPA.