The U.S. Supreme Court has issued its long awaited decision in
United States v. Texas, blocking the Obama Administration's Executive Action program to expand
work permits and provisionally halt deportation for long-time undocumented
immigrants in the U.S. This proposed program built on the Obama Administration's
2012 deferred action initiative for childhood arivals, which has helped
upwards of 800,000 undocumented youths come out of the shadows and obtain
Here’s a run-down of the case: In November of 2014, the Obama Administration
announced that the DHS would expand deferred action and not pursue deportation
of certain undocumented parents of U.S. citizens and green card holders,
or undocumented immigrants brought to the United States as children. DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents)
would be aimed at proetecting parents, Expanded DACA (Deferred Action for Childhood Arrivals) vwould be
geared at undocumented immigrants who came to the U.S. as children, but
didn’t qualify for original DACA because they were over age 31 in 2012.
How can Obama do this? The President under the Constitution has a lot of
power to decide when and how to enforce the laws. This power is known
as “prosecutorial discretion.” To illustrate, when a teenager is picked up for underage drinking,
the prosecutor and police decide how to handle the case.
- Do they call the parents to pick up the teenager?
- Do they charge the teenager with underage drinking and prosecute?
- Or do they let it go with a warning?
Their decision is a matter of
prosecutorial discretion. The police and prosecutor are expected to use their judgment and experience
in deciding how best to prosecute the case.
In the immigration context, ICE has the resources to deport 400,000 people
per year. There are an estimated 11.3 million unauthorized individuals
living in the United States. It is physically impossible to deport them
all, and worse, cruel and inhumane. See,
The New York Times says it would cost at least $400 billion to deport everyone. The U.S.
doesn't want to waste its resources on this. Instead, the government
engages in “prosecutorial discretion” to decide who has to
leave. DHS has made its focus clear: go after criminal immigrants and
national security threats. The Obama Administration, in its
prosecutorial discretion, is deciding not to deport law abiding parents of U.S. citizens and people
brought here as children, and to issue them work permits.
In December 2014, a month after Obama announced DAPA and DACA expansion,
a group of plaintiffs led by the State of Texas sued the Obama Administration
to put a stop to these programs. A federal district court judge in Texas,
Andrew Hannen, put a temporary hold on the program to allow the courts
to decide whether the President had the power start this program. (You
can read the judge’s decision
here). The court
did not look at whether the program was constitutional. It simply put a hold on
the program while it decided that issue.
The Obama Administration appealed the Judge Hannen’s decision to
stop the program to the Fifth Circuit. The appeals court agreed with the
lower court’s decision to block the program. (You can read the Fifth
The Obama Administration took the case all the way up to the U.S. Supreme
Court. Last week, the Supremes split evenly -
four to four - and issued a one sentence: “The judgment is affirmed by an equally
What Does This Decision Mean?
Because the Supreme Court could not come to a decision, Judge Hannen’s
decision remains in place. In other words, DAPA and extended DAPA remains
blocked. The program has not been declared unconstitutional; there is
simply a ban on implementing it while Judge Hannen’s court decides the case.
Now the Obama Administration has to decide whether to fight the injunction
outside of the Fifth Circuit. Could the Ninth Circuit in California or
the Second Circuit in New York come out differently and allow DAPA and
expanded DACA move forward?
In the meantime, the estimated four million parents of U.S. citizen children
who are anxiously awaiting DAPA protection won’t be able to come
out of the shadows. People who currently have DACA are still eligible
for work permits and can apply to travel abroad. Should anyone eligible
for DAPA/extended DACA be placed in removal proceedings, they will still
apply for other forms of immigration relief.
There’s a lot of fear in the immigrant community as a result of the
Supreme Court’s decision. However, DACA remains in place, and Obama’s
policy on deportations hasn’t changed.
DACA recipients should continue to maintain their eligibility by staying
on the right side of the law, complying with their educational requirements,
and renewing DACA status on time. If you've had any law enforcement incidents since acquiring DACA status,
it's critical to speak with experienced legal counsel before applying
for any immigration benefit.
Undocumented parents should also continue to consult with reputable legal
service providers on alternatives to help them get legal status. Just because DAPA has been blocked does not mean no other options are available.