EXPANDED DACA AND DAPA TUNING UP THE SUPREMES
On April 18th, the U.S. Supreme Court heard oral arguments in the matter of United States v Texas. The issue at hand is the expansion of the current Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) for the parents of U.S citizens and lawful permanent residents who meet certain criteria. The case will determine whether millions of immigrants will be able to apply for temporary reprieve from deportation, "deferred action," and the opportunity to apply for work permits upon completion of a background check and biometric screening. The relief does not provide any immigration benefit such as status or a path to permanent residency; it only defers deportation to “the back of the line” so that the government can allocate its resources to those individuals who pose a greater threat.
The original suit was brought by Maricopa County, Arizona Sheriff, Joe Arpaio, challenging the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. After the case worked its way up through the procedural ranks, it landed in the U.S. District Court for the Southern District of Texas. On February 16, 2015, Brownsville, Texas federal judge Andrew Hanen temporarily enjoined DAPA and the planned expansion of DACA pending a higher court’s contrary order or a trial on the merits. Highlights of the court’s reasoning include:
- Texas has standing to bring this lawsuit because DAPA and expanded DACA will create a new class of individuals eligible to apply for state-subsidized driver’s licenses, which would impose additional processing and issuance costs on the state.
- Judge Hanen based his ruling on procedural grounds—that the Government did not comply with certain technical requirements under the Administrative Procedure Act (APA), including notice-and-comment rulemaking.
In reaching this conclusion, Judge Hanen found DAPA and expanded DACA to be substantive rules subject to notice-and-comment procedures rather than general statements of policy. The DHS argued that the expanded DACA and DAPA initiatives are policies under which DHS must decide on a case-by-case basis whether to grant a particular individual temporary relief.
The Department of Justice appealed this order, and arguments were heard on July 10, 2015. On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the lower court’s ruling in a 2-1 decision. The following day, the Department of Justice announced its intention to seek Supreme Court review of the Fifth Circuit’s decision. On January 19, 2016, the Supreme Court granted certiorari (meaning, it agreed to take the case).
It is important to note that recent presidents, including Republicans, have deferred deportations without formal rules. In 1987, in response to political turmoil in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, post-Tiananmen, stopped deportations of Chinese students. He also stayed the deportation of hundreds of Kuwaiti citizens who were illegally in the United States after Saddam Hussein invaded their nation. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of El Salvador's president, and ordered that deportation decisions include consideration of factors such as whether a mother was nursing or whether the person in question was a U.S. military veteran.
Not sure where the Supremes will land, but we will keep you posted.