Introduction: The Future of DAPA and the DACA Expansion and the Election

On June 23, 2016, the an equally-divided Supreme Court affirmed the Fifth Circuit’s judgment that uphold a preliminary injunction issued by a federal District Court against the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program [see blog] and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program in United States v. Texas, 579 U.S. ___ (2016) [PDF version]. I discuss the background of the decision and what it means in this post [see blog].

In this article, I will examine the future of the DAPA Program and DACA expansion in conjunction with the November elections. This is the second of my series of posts on immigration issues and the 2016 elections [see main post].

Presidential Election

The presumptive Democratic nominee, Hillary Clinton, has staked out a clear position on DAPA and DACA. Her website states that she “will defend DACA and DAPA against partisan attacks and politically motivated lawsuits that would put DREAMers and others at risk of deportation.”1 In a statement released after the decision, Clinton stated that the “deadlocked decision from the Supreme Court is unacceptable” [PDF version]. Furthermore, she pledged, as president, to “continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families.” To be sure, Clinton has been a consistent and unequivocal supporter of both DAPA and DACA. In fact, the only reservations she has expressed are that these initiatives do not go far enough. In the same statement, Clinton pledged to “introduce comprehensive immigration reform with a path to citizenship within my first 100 days” in office.

For better or worse depending on your positions, it is clear where Clinton stands on DAPA, DACA, and a path to citizenship. The same cannot be said for the presumptive nominee of my Republican Party, Donald Trump [see blog]. However, while Trump’s positions on many immigration positions have shifted dramatically over the last couple of years, and even at times within his Presidential campaign, he has been consistently opposed to both DACA and DAPA. In a statement on his campaign website, Trump stated that “[the] Supreme Court ruling has blocked one of the most unconstitutional actions ever taken by a President” [PDF version]. Trump continued, “[t]he executive amnesty from President Obama wipes away the immigration rules written by Congress…” Finally, Trump’s statement laid out what his campaign believes is at stake in November: “The election, and the Supreme Court appointments that come with it will decide whether or not we have a border and, hence, a country.”

The Libertarian Party nominee, Gary Johnson,2 has said that “I happen to agree with Obama. … I think that what Obama has done [with DACA and DAPA] is what needs to happen … But the executive orders that he has implemented — I agree with.”3 In addition to defending both DAPA and DACA as matters of policy, Johnson echoed Clinton’s and Obama’s explanations for why the executive actions were necessary: “I saw [the executive orders] as a reasonable use [of the President’s power], challenging Congress to action.”4 However, while Johnson praised the President for DAPA and DACA, he has been critical of the President for breaking up too many families with his deportation policies.

If we limit our inquiry to the future of DACA and DAPA, the Presidential election presents a clear choice. Hillary Clinton supports both programs and would seek to expand them and create a generous pathway to citizenship. Accordingly, it can be assumed that Clinton would continue to defend the programs in court. Donald Trump has consistently opposed both DACA and DAPA and, from his statements, it seems likely that he would rescind both programs upon taking office. For those considering Johnson, they should know that Johnson supports DACA and DAPA both as matters of policy and matters of executive authority, and that he would likely seek even more liberal immigration policies than those found in the two programs.

On family unity issues in general, Trump is a bit harder to pin down than he is on DACA and DAPA. For example, in August of 2015, Trump stated that, while he would rescind DACA and DAPA, he would “keep the families together.”5 However, in the same interview, Trump said that “[t]hey have to go” if they are unlawfully present. Interestingly, despite often proposing an increased emphasis on deportation, Trump echoed Gary Johnson when, on June 25, 2016, when he criticized President Obama for “mass [deporting] vast numbers of people.” Furthermore, Trump promised that “I have not only the best policies, but I will have the biggest heart of anybody.”6 It seems overwhelmingly likely that, as President, Trump would rescind DACA and DAPA. However, it is harder to say what the immigration policies of a Trump administration would be for those who would benefit from DACA and DAPA if they were to be implemented. He has at times pledged to deport all persons here unlawfully and at others pledged to preserve family unity and possibly cut down on deportations.

Congress and the Supreme Court

While many voters fixate on the Presidential election, it is important to remember that immigration policy begins with legislation that is written by Congress. For those like me who hope to see DAPA struck down on the merits, it is especially important to elect a Congress that will pass better and more permanent immigration policies.

With regard to DAPA and the DACA expansion specifically, there are two things which we must consider when voting for members of Congress.

First, Congress wields what is called “the power of the purse.” This means that Congress is responsible for passing legislation to fund government departments and, by effect, government programs. The President does not have the power to fund government functions without congressional authorization. While DAPA and the DACA expansion are being fought over in the courts, there is nothing preventing Congress from seeking to use the power of the purse to compel the President to change policy. In late 2014, Senators Ted Cruz and Mike Lee raised a constitutional point of order against funding for the Department of Homeland Security (DHS) on the basis that the President would use the funding to implement DAPA and his expansion of DACA illegally.7 Although the point of order was soundly defeated, it serves as a good example of an attempt to use the power of the purse to change the policy of the President. When voting for members of Congress, it is important to not only look at the positions of the candidates, but also the type of tactics they pledge to use to advance their objectives. For example, on the Republican side, there is often a significant difference in the tactics advocated by Senators Cruz and Lee and the tactics advocated by the Republican leadership, even where their positions on an issue are similar, if not identical.

The most immediate issue with regard to the future of DAPA and the DACA expansion is the composition of the Supreme Court. If Hillary Clinton becomes the next President, the programs will quite likely end up once again before the Supreme Court. If Donald Trump is the next President, he would presumably revoke the executive orders authorizing DAPA and the DACA expansion, thereby rendering the issue over the legality of the orders moot. Accordingly, I will reserve the discussion of a Trump Administration and the effects of his potential Supreme Court appointments for a future post, and focus on what may happen if Clinton is the next President.8

Currently, President Obama’s nominee to the Supreme Court, Judge Merrick Garland of the D.C. Circuit, is in limbo. The Senate has at this time decided not to hold hearings on Judge Garland’s nomination, and it has taken the position that the next President should nominate former Justice Antonin Scalia’s replacement [see blog on Justice Scalia’s career]. Assuming the Senate holds firm, a President Clinton would have the option of either re-nominating Garland or nominating a different candidate.

Although we do not know the specific voting alignment of U.S. v. Texas, it is generally assumed that Justices Roberts, Kennedy, Thomas, and Alito voted against the administration’s position, while Justices Ginsburg, Breyer, Sotomayor, and Kagan voted for the administration’s position. Accordingly, it is generally assumed that a Justice Garland, or any Justice whom Clinton would appoint, would be more likely than not to vote in a way that would be favorable to the current position of the Obama Administration. I must caution, of course, that it is possible the voting alignment of U.S. v. Texas is not what is generally assumed, and that we thus do not know what the Justices would have decided if they had reached a majority on either side. Furthermore, it cannot be assumed with absolute certainty what position would be taken by Justice Garland or by a different Clinton nominee. While adding Justice Garland or a different Clinton nominee to the Court would likely increase the chances of a favorable ruling for DAPA and the DACA expansion, it would by no means guarantee it.

Under current rules, it is possible to require cloture for a vote on a Supreme Court nominee. This means that a Senator may force the Senate to obtain 60 votes to end debate on the nominee rather than permit a straight up or down vote. This provision increases the power of the party that is opposed to the nominee. However, it is possible for the majority party in the Senate to change the rules such that only a straight up or down vote is required. In 2013, the Democrats abolished the cloture requirement for all executive appointments and federal court nominees except for the Supreme Court.

The current alignment of the Senate is 54 Republicans, 45 Democrats, and 1 independent Senator who caucuses with the Democrats. If Clinton becomes the next President and the Democrats win the Senate majority, the Democrats would be in commanding position to confirm Clinton’s nominee. They could either do this by changing the rules or by using the threat of a rule change to deter the Republicans from requiring cloture. If the Republicans maintain the Senate majority and Clinton becomes the next President, the Republicans would still be in strong position to deny consent to any Clinton nominee who the Republican caucus finds unacceptable. However, even in the second scenario, it would be far more likely than not that a Clinton nominee would be confirmed by the Senate.

Voters for the U.S. Senate should take the future composition of the Supreme Court into account in casting a vote, especially in conjunction with the Presidential election. The ultimate fate of DAPA and the DACA expansion is just one of a multiplicity of issues that may ultimately hinge on who the next President, with the advice and consent of the Senate, has appointed to the Supreme Court.

Conclusion

The debate over DAPA and the DACA expansion is not just a debate about the specific immigration policies, but also a debate about the limits of executive authority and the very way immigration law and policy should be made and implemented. Accordingly, for those of us who are interested in immigration law and policy, the debate presents important issues to consider before casting ballots this November. As I have discussed in previous posts [see blog], I do not support DAPA and the DACA expansions as either a matter of policy or procedure. At the very least, I hope that the next President exercises his or her authority over immigration policy with far more concern for procedural regularity and the limits of statutory authority than did the current administration in the executive orders authorizing DAPA and the DACA expansion.

  1. “America Needs Comprehensive Immigration Reform with a Pathway to Citizenship,” hillaryclinton.com, (accessed Jun. 28, 2016)
  2. Johnson is the Libertarian Party nominee and the former two-term Governor of New Mexico (1995-2003) as a Republican. Johnson received 0.99% of the vote in the 2012 election. Although it is exceedingly unlikely that he will seriously contend for the presidency, several polls have him in the high single to low double digits. Accordingly, I will examine his immigration positions in my blog posts so that those considering him as a third party alternative have a good understanding of where he stands.
  3. “2016 presidential candidates on DACA and DAPA,” ballotpedia.org, (retrieved on Jun. 28, 2016), available at https://ballotpedia.org/2016_presidential_candidates_on_DACA_and_DAPA
  4. Allahpundit, “Gary Johnson: I support Obama’s executive amnesty because it “challenged Congress to action”,” hotair.com, (Jun. 6, 2016)
  5. “2016 presidential candidates on DACA and DAPA,” ballotpedia.org, (retrieved on Jun. 28, 2016)
  6. Cirilli, Kevin, “Trump Says Muslim Ban Plan to Focus on ‘Terrorist’ Countries,” Bloomberg.com, (Jun. 26, 2016)
  7. I discuss it here [see footnote 5].
  8. Gary Johnson voters have a more complicated set of considerations on this issue. Although Johnson himself favors DACA and DAPA, I believe it cannot be safely assumed that Johnson would nominate to the Court a person who would be more likely than not to rule in favor of the legality of DAPA and the DACA expansion. This is because Johnson, as a libertarian/moderate conservative, would potentially be more likely to pick a libertarian/conservative judge who would be less likely to uphold the particular use of executive power on this issue than would a Clinton nominee.