Equally Divided Supreme Court Upholds Preliminary Injunction Against DAPA Implementation

United States v. Texas and the 2016 Election Introduction

On June 23, 2016, the Supreme Court issued its much-anticipated decision regarding the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program. In United States v. Texas, 579 U.S. ___ (2016) [PDF version], an equally divided Supreme Court (4-4) affirmed the judgment of the Fifth Circuit that left in place a district court injunction against the implementation of the President's initiatives. In this post, I will discuss the background of the case and what the Supreme Court's decision means going forward.

Background

I have discussed the litigation surrounding the DAPA Program [see blog] on this blog. The following are the posts that I wrote on the subject:

1. Fifth Circuit Upholds Preliminary Injunction Against DAPA [see blog]
2. Obama Administration Petitions to the Supreme Court [see blog]
3. The Supreme Court Grants Review [see blog]

President Barack Obama and Secretary of Homeland Security Jeh Johnson announced several immigration “executive actions” in late 2014 [PDF version]. Among these executive actions were the DAPA Program and an expansion of the DACA.

Texas, joined by 25 other states, filed a lawsuit in federal district court seeking an injunction against the implementation of the DAPA Program and the expansion of the DACA Program. Texas made three arguments in support of its position:

1. The Administration violated the Administrative Procedure Act (APA) by not subjecting the programs to notice and comment rulemaking.
2. The Department of Homeland Security (DHS) did not have the authority to implement the programs under the Immigration and Nationality Act (INA).
3. The President abrogated his constitutional duty to “take care that the laws be faithfully executed.”

The District Court granted a preliminary injunction on the basis that Texas was likely to prevail in its first argument that the implementation of DAPA and the DACA expansion violated the APA [PDF version]. On appeal, the Fifth Circuit upheld the preliminary injunction and, in so doing, also found that Texas was likely to prevail in its second argument, that the Department of Homeland Security (DHS) did not have the authority to implement the programs under the INA [PDF version].

In seeking review by the Supreme Court, the Administration argued that the DAPA Program and DACA expansion were not subject to the APA and were within the President's authority under the INA. Furthermore, it argued that Texas and the other states did not have standing to sue. The Supreme Court requested that the parties provide briefing on Texas' third argument-that the President violated the “take care clause” of the United States Constitution.

Supreme Court Decision

The Supreme Court's decision in United States v. Texas, 579 U.S. ___ (2016) [PDF version], was, so to speak, anticlimactic. Since the death of former Justice Antonin Scalia [see blog] last February, the Supreme Court has been operating with only eight Justices instead of nine. Under these circumstances, in the event that the Justices split 4-4, a decision of the lower court is. That is exactly what ended up happening in United States v. Texas. Moreover, because the Court deadlocked, we do not even know which Justices fell on each side of the split, much less their reasoning.

What Happens Now?

Because the judgment of the Fifth Circuit was affirmed by an equally divided court, the preliminary injunction issued by the District Court against the implementation of DAPA and the DACA expansion stands. The case will presumably return to the District Court for a decision on the ultimate merits.

Given the content of the District Court decision and the Judge's subsequent claims that the government misled the court with regard to its implementation of the programs, it seems more likely than not that the District Court will strike down DAPA and the DACA expansion. However, we must note first that this is not assured and, second, that even if the District Court strikes down the programs, it is unclear whether it will do so merely for violating the APA or additionally because it finds that the programs exceed the President's authority under the INA.

Interesting, the District Court Judge, Andrew Hanen, has accused Justice Department lawyers of misleading the Court with regard to the government's implementation of the programs. Judge Hanen issued several controversial orders in response to the alleged misrepresentations of government lawyers, some of which have been challenged. Judge Hanen will hold a status conference with Justice Department lawyers on August 22.¹ At that time, we may have a better idea of how the case will proceed.

Regardless of the decision, the losing side will be able to appeal the decision to the Fifth Circuit (and subsequently seek review from the Supreme Court). Furthermore, the government may seek rehearing by the Supreme Court.

For all intents and purposes, this means that President Obama will be unable to implement DAPA and the DACA expansion (however, the main DACA program from 2012 [see article] is unaffected) during the final months of his term in office. It is unlikely that the issue will be fully resolved until 2018, at the earliest.²

What Does this Mean in the Short Term?

The Supreme Court decision merely maintains the status quo. Except for limited cases where the DHS erroneously issued employment authorization documents under the new immigration initiatives, neither DAPA nor the DACA expansion was ever implemented before the injunction. A person who would have been eligible to benefit under one of the enjoined initiatives should consult with an experienced immigration attorney for a full and individualized assessment of his or her immigration situation. Depending on the unique facts of each case, some individuals who would have been eligible to benefit from the implementation of DAPA may be eligible for other forms of immigration relief.

Conclusion

Ideally, the Supreme Court would have found that the President exceeded his authority under the APA and under the INA in endeavoring to implement DAPA and the DACA expansion. Such a decision would have created important precedent that would prevent the President from creating binding rules without following the procedures set forth in the APA and would have prevented the President from exceeding the statutory authority provided to the executive branch in the INA.

However, short of that outcome, the 4-4 split in the Supreme Court was an acceptable outcome. The decision affirms the Fifth Circuit's decision to uphold the preliminary injunction, and it sets the stage for the lower courts to strike down the President's initiatives on the merits.

The fate of these programs will be decided not only by the courts, but also by the voters in the November elections. To read my post about what the United States v. Texas decision means for November, please see my blog [see blog]. Regardless of the outcome of the election, I hope that the next President abandons the current administration's approach of creating binding rules by executive fiat and instead endeavors to work with the next Congress in crafting new statutes that will make permanent improvements to our immigration system. It is my hope that the next President recognizes that a failure to reach an agreement on new legislation does not confer upon the executive the power to create new rules and programs without respect for procedural regularity and statutory restrictions.

I look forward to writing more about the election and its effect on immigration law in my series of blog posts on the subject [see blog].

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1. Lyle Denniston, Opinion analysis: Obama immigration plan all but doomed, SCOTUSblog (Jun. 23, 2016), available at http://www.scotusblog.com/2016/06/opinion-analysis-obama-immigration-plan-all-but-doomed/
2. AILA FAQs on Supreme Court's Ruling in U.S. v. Texas, (Jun. 24, 2016), available at AILA Doc. No. 16062436