Immigration Executive Action Struck Down by Supreme Court

Supreme Court Stalemate Halts DAPA/DACA+

In a 4-4 ruling, the Supreme Court dealt a blow that effectively stops implementation of President Obama’s November 2014 Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) for the foreseeable future.

Deferred action is a discretionary measure taken by the Department of Homeland Security (DHS). In sum, deferred action allows DHS to recognize that someone is in the country without status, but permit them to remain in the United States without fear of deportation if that person meets a certain set of criteria.

The Obama Administration first implemented DACA in 2012. The 2012 version of the DACA program enabled individuals who came to the United States without authorization to lawfully remain and work in the United States for two years at a time with the possibility of renewal so long as such individuals:

  • Were under the age of 31 as of June 15, 2012
  • Came to the United States before turning 16 years of age
  • Maintained continuous residence in the United States since June 15, 2007
  • Had no lawful status on June 15, 2012
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

In November of 2014, the Obama Administration sought to increase the number of undocumented immigrants eligible to apply for deferred action through an expansion of the DACA program (DACA+) and an introduction of the DAPA program. The November 2014 expansion of DACA removed that age cap limitation to eligibility for deferred action, pushed the permissible date of unlawful entry and start of continuous residence back to January 1, 2010, and granted three years of work authorization with the possibility for renewal. The DAPA program, as outlined in November of 2014 allowed individuals without status to remain and work in the country for three years with the possibility for renewal so long as they:

  • Have continuously lived in the United States since January 1, 2010
  • Were physically present in the United States on November 20, 2014
  • Had no lawful status on November 20, 2014
  • Had a U.S. Citizen or lawful permanent resident son or daughter on November 20, 2014
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

Shortly after announcing DAPA and DACA+, the Obama Administration was sued by Texas and twenty-five other states who alleged that the Obama Administration had overstepped its bounds, and failed to follow proper procedure in enacting DAPA and DACA+. These states claimed that they would be injured by the enactment of DAPA and DACA+ due to having to provide state benefits to the beneficiaries of DAPA and DACA+. Days before DAPA and DACA+ were due to go into effect, Judge Hanen of the Southern District of Texas issued a preliminary injunction, preventing the new programs from coming into play. The Fifth Circuit Court of Appeals upheld the injunction, and the Supreme Court of the United States subsequently agreed to hear the case.

In the wake of Justice Scalia’s death and the Obama Administration’s inability to pass a new Supreme Court Justice through confirmation in the Senate, the Supreme Court, with one vacant seat on the bench, reached a 4-4 tie decision today. The Supreme Court’s inability to rule either way on the validity of the 2014 programs means that, for now, the Fifth Circuit’s decision to uphold the injunction of DAPA and DACA+ stands, preventing the November 2014 programs from going into effect. However, today’s ruling does not affect the June 2012 DACA program; those who qualify under 2012 DACA program may still apply.

But as President Obama said today in his speech, the Supreme Court’s inability to come to a decision on DAPA and the expansion of DACA does not change the original DACA program and the administration’s policies about deportation.