Frontera Fund News

DAPA, DACA and the Supreme Court: What You Need to Know

Supreme Court

Obama’s executive actions for undocumented immigrants are under fire. Here’s the gist – without the legal mumbo-jumbo.

On Monday, April 18, the U.S. Supreme Court will start hearing arguments in United States v. Texas, which will determine the fates of an estimated 4 million undocumented immigrants

The two initiatives are at stake are: 

1. DAPA, which would offer work permits and temporary relief from deportation to undocumented parents of U.S. citizens or legal residents

2. Expanded DACA, which would provide work permits and temporary relief from deportation to Dreamers who were too old to qualify for the original DACA in 2012.

The nation has been awaiting the outcome of this case since February 2015, when Texas and 25 other states blocked DAPA and extended DACA just days before they would have launched, claiming they violated the U.S. Constitution and federal law. Since then, the initiatives – and the families that will be directly affected – have been in limbo.

Here’s an easy, Cliff’s Notes version of what you need to know and how the outcome might affect you.

First off, do I need to worry if I qualified for the original DACA in 2012?

No. This lawsuit doesn’t challenge the original DACA. The Secretary of Homeland Security has announced, “Individuals may continue to come forward and request initial grants of DACA or renewal of DACA pursuant to the guidelines established in 2012.”

OK. So, what are the states saying is wrong with DAPA and extended DACA?

The 26 states say the initiatives violate:

1. The “Take Care Clause” of the U.S. Constitution, which says the President must “take care that the laws be faithfully executed.” Basically, it means the President must follow federal laws. The states claim that President Obama is saying it’s OK to be in the country illegally, so he’s breaking immigration laws.

2. The Administrative Procedure Act (APA), which sets down rules for how laws should be enacted. The states claim President Obama overstepped his power by moving forward with an immigration policy without approval from Congress and without following procedures like issuing the law as a draft and getting public feedback first.

Do DAPA and expanded DACA violate the Constitution?

DAPA and DACA are presidential executive orders. Though the Constitution doesn’t explicitly give the president authority to issue executive orders, it has happened hundreds of times in the past.

The most famous executive order is President Lincoln’s Emancipation Proclamation, which freed the slaves. (Conservatives weren’t happy about that initiative, either.)

The defense will argue that since 1956, every U.S. president has used executive action to grant temporary immigration relief to undocumented individuals, totaling at least 39 instances

The Supreme Court also already decided, in the 2012 case Arizona v. United States, that one of the principal features of the immigration system is immigration officials’ “broad discretion” to decide who can stay in the country and who must be deported. The Court essentially acknowledged that there’s no black-and-white way to view this issue, and immigration officials must have wiggle room to make what they feel are the best decisions. DAPA and expanded DACA fall under this umbrella of “broad discretion.” 

What are the potential outcomes?

First, the eight Supreme Court justices have to decide if the 26 states have “standing” to sue the federal government. To have “standing,” just one state has to prove it would suffer definite injury or harm due to DAPA or expanded DACA. 

Texas claims it would be harmed by having to spend $130 per person on driver’s licenses for DAPA and expanded DACA recipients, which would amount to millions of dollars. The federal government basically counters: Seriously? Administering any law costs money. You can’t sue us for every law based on that.

In fact, it’s entirely possible the Supreme Court justices could say to themselves, Hold on. If we say Texas has “standing” to sue us over $130 per person, then every state is going to sue us for every little thing. 

As a result, the judges could rule that the states don’t have standing and permanently throw out the case.  If that happens, the preliminary injunction (temporary block) against DAPA and expanded DACA will be lifted. The government could then begin processing applications for expanded DACA very quickly (since they were ready to start last year). The launch of DAPA might take extra time to prepare. 

If the Supreme Court decides the plaintiff states do have standing but dismisses their claims about constitutional or Administrative Procedure Act violations, then DAPA and expanded DACA could move forward. However, the district court in Texas could go on to determine that the President’s executive orders are unconstitutional. If that decision were appealed, the case could rebound to the Fifth Circuit and the Supreme Court.

If, on the other hand, the Supreme Court agrees with the states and does not allow expanded DACA or DAPA to move forward, the case would likewise be tossed back to the district court. If the district court’s decision is appealed, the case could boomerang back to the Fifth Circuit and the Supreme Court.

The Supreme Court is expected to make its decision by June 2016.