Supreme Court DAPA Ruling a Blow to Obama Administration, Moves Immigration Back to Political Realm

While the U.S. Supreme Court may have dealt a hard blow to the Obama immigration legacy with its intensely anticipated but anticlimactic 4-4 split decision in United States v. Texas, the last word on the future of the contested deferred action programs has yet to be written. The case now goes back to the lower courts, where a number of scenarios could play out based on how the Justice Department and the presiding appellate and district judges respond. Court rulings aside, one thing is clear: It will be up to the next administration to determine the future of these executive actions. And the Supreme Court outcome leaves an altered—and potentially more open—landscape for immigration policy changes to occur in the next Congress.

Next Steps in the Legal Case

The tie vote, announced on June 23, simply affirms a lower court decision to maintain a nationwide injunction on the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) program. As with all Supreme Court tie votes, no legal precedent was set, and no insight was provided into individual justices’ positions on the legal issues raised in the case. U.S. v. Texas is perhaps the most high-profile of the four Supreme Court cases to end in a 4-4 tie since the death of Justice Antonin Scalia in February and the decision by Senate Republican leaders to delay confirmation hearings for a successor until after the November 2016 presidential election.

The DAPA program and DACA expansion would provide protection from deportation, as well as eligibility for work authorization, for up to 4 million of the estimated 11 million unauthorized immigrants in the United States. The initiatives were the centerpiece of a series of executive actions on immigration announced by President Obama in November 2014. Their implementation was quickly challenged by Texas and 25 other states, and enjoined in February 2015 by Andrew Hanen, a federal district judge in Brownsville, Texas. The injunction was upheld by two separate three-judge panels of the 5^th U.S. Circuit Court of Appeals. The case now returns to the 5^th Circuit and from there will be sent back to Judge Hanen for a full hearing on the merits.Texas and its colitigants argue that the executive actions represented an unconstitutional reach of executive authority, violated the Administrative Procedures Act, and would harm states by inflicting financial harm. Texas contends that it would be forced to spend millions of dollars to issue driver’s licenses to DAPA recipients.

Before the case is sent back to the lower courts, however, the Justice Department is expected to petition the Supreme Court for a rehearing. Under Supreme Court rules, any party in a case may request a rehearing within 25 days of the decision. Rehearings are seldom granted, and typically reserved for instances when the court determines a prior decision was based on inaccurate information. Part of the Justice Department strategy in petitioning for a rehearing would be the hope that the high court would be at full staff, with nine justices, when it convenes next term. Even if the request is denied, it will delay the return of the case to Judge Hanen, who has made it all but clear that the administration stands virtually no chance of succeeding on the merits in the case.

As with the challenge over the injunction, any lower court decision on the merits undoubtedly will be appealed by the losing party. Thus, the legality of the DAPA program and the authority of the president to create it may ultimately wind its way back to the Supreme Court—a process that could take up to two years.

The Immediate Impact of the Ruling

While the Supreme Court tie represents a major setback to what President Obama likely hoped would be his signature achievement on immigration, several of his other important immigration policy initiatives will remain in place.

First, the outcome in U.S. v Texas has no direct impact on the original DACA program, which was implemented in August 2012 and has so far provided a two-year deferred action and work authorization to nearly 730,000 young unauthorized immigrants. Those who qualify for the program can still submit initial or renewal applications.

DACA has survived several legal challenges, including one brought by a group of U.S. Immigration and Customs Enforcement (ICE) officers and another by Maricopa County, Arizona Sheriff Joe Arpaio. Both were dismissed in federal court for lack of standing. Some legal experts have expressed concern, however, that in light of the U.S. v. Texas ruling, DACA opponents might feel encouraged to bring a fresh challenge. But there are clear political hazards in terminating a program that has been in place for four years and has affected hundreds of thousands of lives. DACA is generally viewed as a highly successful program that has substantially improved the well-being of many unauthorized immigrants who came to the United States as children and pursued an education or served in the military.

Second, the Supreme Court decision does not affect a memorandum, also issued in November 2014, that established priorities for immigration enforcement. These Department of Homeland Security (DHS) guidelines prioritize for deportation certain unauthorized immigrants (those who represent a danger to national security or public safety, those with serious criminal convictions, and recent arrivals and border crossers), while taking enforcement focus off those who are long-time U.S. residents, have no serious criminal record, and have strong ties to U.S. communities. The Migration Policy Institute (MPI) estimates the 2014 enforcement priorities, if strictly followed, provide a degree of protection from deportation to 87 percent of unauthorized immigrants living in the United States. Thus most individuals who would have qualified for DAPA represent low enforcement priorities under the DHS guidelines and face minimal chances of being removed, although they do not have the benefit of affirmative relief from deportation and eligibility for work authorization that DAPA would permit.

What’s Next on the Immigration Front?

With less than six months left in office, President Obama has ruled out new executive actions on immigration during the remainder of his term. “I have pushed to the limits of my executive authority,” the president said after the Supreme Court announced its ruling. “We now have to have Congress act. And hopefully, we’re going to have a vigorous debate during this election—this is how democracy is supposed to work—and there will be a determination as to which direction we go in.” 

The Supreme Court deadlock has predictably drawn dissonant reactions from the presumptive Republican and Democratic nominees, Donald Trump and Hillary Clinton. “Today's 4-4 Supreme Court ruling has blocked one of the most unconstitutional actions ever undertaken by a president,” Trump said in a statement. Clinton, on the other hand, called the decision “unacceptable” and “heartbreaking,” vowing to “to defend DAPA and DACA, and do everything possible under the law to go further to protect families.” Both candidates stressed the high stakes in determining future Supreme Court appointments.

With immigration already a highly charged issue in the presidential campaign, the Supreme Court decision will surely keep the topic a central feature of the public debate and November election. This is true for Democrats in particular. In dashing the hopes of millions of potential DAPA recipients and their families, the Supreme Court may especially energize the Latino electorate, which is believed to have provided the margin of victory for President Obama in a number of swing states in 2012. Had the Supreme Court permitted the DAPA program to be implemented, the resultant political energy most likely would have instead benefitted Republican candidates.

Options for a Future Administration

The challenge of resolving the status of the unauthorized immigrant population in the United States now shifts to the next administration, presenting it a range of possible outcomes.

Trump has pledged to respond with a massive enforcement build-up, including large-scale deportations, new border-control mechanisms, and a possible end to the current DACA program. There is no chance that he would attempt to institute a policy similar to DAPA if elected.

For Clinton, the Supreme Court deadlock presents a number of choices and legal hurdles if she is elected. Since the initial DAPA injunction was granted on grounds that the Obama administration ignored the Administrative Procedures Act by creating the program without issuing regulations and seeking public input, Clinton could announce a new deferred action program and go through the regular rulemaking process. A second option would be to issue a new executive action that is somewhat different from the DAPA directive, to avoid some of the issues raised by Texas and the 25 other states challenging the program. It is also possible that a new deferred action program could be announced while the current litigation is pending. Moreover, rescinding the challenged executive actions would effectively moot the U.S. v. Texas case.

Given these legal hurdles and the promise Clinton made to introduce comprehensive immigration reform legislation within her first 100 days in office, a legislative focus on immigration may be a more likely outcome.

Prospects for Future Congressional Action

In fact, the Supreme Court tie may return the issue of immigration to the new Congress for other reasons. Critics of the DAPA program argue that the executive action constituted an overreach of presidential authority; congressional Republicans in particular have asserted that such broad change to immigration policy is the exclusive prerogative of Congress. “The Constitution is clear: The president is not permitted to write laws—only Congress is,” House Speaker Paul Ryan said after the court ruling. “This is another major victory in our fight to restore the separation of powers.”

President Obama has maintained that he was forced to issue the 2014 executive actions only after a promising, two-year long push to enact immigration reform was foiled amid Republican opposition. While some in the Republican Party are in favor of immigration reforms and have deemed them essential to make inroads into the Latino electorate, immigration liberalization policies are deeply unpopular with many conservative base voters.

Feeling vindicated by the Supreme Court decision, some Republicans may see a new opening to advance immigration proposals for which they could take political credit. Already this month, Republican Reps. Carlos Curbelo (FL) and Mike Coffman (CO) introduced a new version of the DREAM Act, which would offer a pathway to citizenship to a population of unauthorized immigrants who were brought to the United States as children and have gone on to succeed in school or the military.

How far any immigration legislation advances in the next Congress will depend largely on the outcome and the margins of victories in the 2016 presidential and congressional elections. A Trump victory would mean significant enforcement increases and would all but rule out the chances for relief for unauthorized immigrants, while a Clinton win significantly raises the prospects of broad immigration reform that not only touches on illegal immigration but the reshaping of the legal immigration system. If Democrats win control of the Senate in November or expand their numbers in the Republican-controlled House, that would similarly bode well for reform—especially if Latino voters are seen as contributing to GOP losses. As a result, empowered Democrats and Republicans seeking to mend fences with a growing voter bloc may join forces—succeeding where a series of legislative attempts throughout the past decade and a half have fallen short. Elections notwithstanding, however, recent history shows that passing immigration legislation regardless of which party controls Congress remains a complex, politically fraught undertaking.

• Supreme Court judgment in U.S. v. Texas  
• Hillary Clinton statement on the ruling
• Donald Trump statement on the ruling
• President Obama remarks after the court announcement

National Policy Beat in Brief

House Narrowly Rejects Effort to Bar DACA Recipients From Military. On June 16, the U.S. House of Representatives rejected two amendments to the annual defense spending bill that would have effectively prevented young unauthorized immigrants who are Deferred Action for Childhood Arrivals (DACA) recipients from enlisting in the military. One amendment, sponsored by Rep. Paul Gosar (R-AZ) would have blocked funds to enlist DACA recipients in the Military Accessions Vital to the National Interest (MAVNI) program, which allows certain noncitizens with in-demand skills to join the Army in exchange for expedited U.S. citizenship. The second, sponsored by Rep. Steve King (R-IA), sought to block funds to enlist DACA recipients in the military altogether. The amendments were narrowly defeated by votes of 211-210 and 214-207 respectively by a coalition of Democrats and moderate Republicans. In recent years, 150 DACA recipients with specialized language skills have joined MAVNI; since the 9/11 attacks, 150,000 noncitizens, the vast majority of them legal immigrants, earned citizenship through the military program.

• Article in The Hill about the military amendments

Judge Rules that Cuban Arrivals to Florida Lighthouse Must Be Returned. A U.S. district court in Miami ruled June 28 that more than 20 Cuban migrants who arrived by boat to waters near the Florida Keys and climbed onto a lighthouse seven miles from shore must be repatriated to Cuba. U.S. District Judge Darrin Gayles found that the lighthouse does not qualify as U.S. territory under the “wet-foot, dry-foot” policy, which provides that Cuban nationals who are interdicted at sea are returned while those who reach the United States are permitted to remain. The judge also upheld the authority of the executive branch—and of the U.S. Coast Guard—to implement the “wet-foot, dry-foot” policy and make “wet-foot” or “dry-foot” determinations for the migrants it interdicts. Since the United States and Cuba began normalizing diplomatic relations in December 2014, there has been a surge in Cuban nationals arriving at U.S. ports of entry or attempting to reach the United States by boat. The increase comes amid concern among Cubans that the United States will revoke the uniquely preferential access to green cards and benefits long enjoyed by Cubans under U.S. law.

• Decision by federal judge in lighthouse case

USCIS Implements Program for Filipino World War II Veterans. On June 8, U.S. Citizenship and Immigration Services (USCIS) began implementing the Filipino World War II Veterans Program announced in July 2015. The policy allows certain family members of Filipino veterans who enlisted to fight for the United States during World War II an opportunity to receive a discretionary grant of parole to come to the United States before their approved family-based immigrant visa becomes available. One goal of the program is to allow family members to provide care and support to aging veteran relatives and their spouses. The program was established because many relatives of Filipino World War II veterans currently face long wait times to receive their visa—up to 20 years in certain family-based visa categories. Under the new program, USCIS will review each case individually. An estimated 2,000 to 6,000 Filipino World War II veterans live in the United States.

• USCIS information about the Filipino veterans program

H-2B Visa Cap Reached for the Year. On May 12, USCIS announced it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year (FY) 2016. New petitions requesting an employment start date before October 11, 2016 (and received after May 12) will be rejected; new petitions requesting an employment start date on or after October 1, 2016 will count towards the FY 2017 cap. Each fiscal year USCIS may issue 66,000 new H-2B worker visas, with 33,000 allocated to those starting employment in the first half of the year (between October 1 and March 31) and 33,000 allocated to those starting employment in the second half of the year (between April 1 and September 30). The H-2B temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

• USCIS press release on reaching the H-2B cap

State Policy Beat in Brief

Federal Judge Dismisses Texas Lawsuit over Syrian Refugee Resettlement. On June 16, a federal judge in Dallas dismissed a lawsuit filed by the state of Texas seeking to block the resettlement of refugees. The state alleged that the Obama administration failed to properly consult with state officials about resettlement of Syrian refugees, as required by the 1980 Refugee Act. The lawsuit also accused a refugee services nonprofit agency, the International Rescue Committee (IRC), of breaching its refugee resettlement contract with the state. U.S. District Judge David Godbey found that Texas lacked legal standing to enforce the consultation provisions in the Refugee Act and failed to show that IRC breached its contract. Efforts by more than two dozen governors to prevent the resettlement of Syrian refugees in their states following terrorist attacks in Paris in November 2015 have failed in federal court. The state is considering whether to appeal.

• Order by U.S. District Judge David Godbey dismissing the Texas lawsuit

Class Action Status Granted in Child Representation Lawsuit. On June 27, a U.S. district judge in Seattle granted class-action status in a lawsuit filed in 2014 by a group of immigrant-rights organizations challenging lack of counsel for children in immigration court. It is estimated that several thousand unaccompanied minors and other children could meet the requirements to join the class covered in the lawsuit, J.E.F.M. v. Lynch. The judge’s order includes all children under age 18 who were in deportation proceedings in the Ninth U.S. Circuit Court of Appeals (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington State) on or after June 24, 2016; do not have a lawyer or are unable to afford one; and are potentially eligible for asylum, withholding of removal, protection under the Convention Against Torture, or to assert a claim for U.S. citizenship. The groups that have filed suit against the Obama administration argue that the current system unfairly pits unrepresented children against trained federal prosecutors in removal proceedings that may carry life-and-death consequences, especially when having a lawyer dramatically increases the chances for remaining in the United States. The administration has defended the government’s policy of not providing children with attorneys in immigration court, arguing there are insufficient funds to provide legal representation and that the practice is not necessary to ensure fair hearings.

• Order by U.S. District Judge Thomas Zilly in J.E.F.M v. Lynch lawsuit