On June 23, 2016, the Supreme Court of the United States, by a deadlocked 4-4 vote, affirmed the decision of the U.S. Court of Appeals for the Fifth Circuit which had upheld a District Court’s temporary injunction against a key component of President Obama’s Executive Action regarding immigration benefits. This is a significant development regarding the present and future of immigration policy and potential reform needed to resolve serious issues our country must address.
To set the scene, in November 2014, President Obama, having not succeeded in finding any dialogue with Congress regarding how to enact legislation regarding immigration reform, announced a sweeping Executive Order that would implement by executive fiat a series of changes in how the Government would enforce the immigration law. One component involved a benefit program called “Deferred Action for Parental Accountability” (DAPA), which would allow undocumented parents of U.S. citizen children to apply for employment authorization and temporary authorized immigration status, provided that the applicants could show that they had a U.S. citizen child as of November 20, 2014 and had been physically present in the United States since on or before January 1, 2010. Another proposal involved expansion and extension of the previously implemented “Deferred Action for Childhood Arrivals” (DACA). These two proposed benefits programs, through which it has been estimated that more than 4.5 million people would stand to benefit, were highly controversial at the time of announcement.
Nearly immediately after President Obama announced his Action, 24 States filed suit in Federal District Court to challenge the President’s authority to make these decisions. A principal basis for the States’ opposition concerned their concern that those undocumented non-citizens who stood to benefit under the plan would be eligible for financial benefits (for example unemployment benefits), and thereby cause a substantial cost to the States. The U.S. District Court enjoined implementation of DAPA, and the Fifth Circuit upheld the injunction.
The Supreme Court, in affirming the Fifth Circuit’s injunction, agreed with the Fifth Circuit’s conclusion that the Executive Order and agency implementation constituted a violation of proper rule-making requirements under the Administrative Procedures Act, thus leaving the injunction in place. The immediate result of this decision is that those non-citizens in the U.S. who are undocumented and are otherwise precluded from a path to legalized status or authorization will continue to be unable to secure a legal employment authorization or other status that would allow them to “come out of the proverbial shadows”, and their U.S.-born children will continue to face the possibility that their undocumented parents may be forcibly removed from the United States and separated from them.
The actual lawsuit can continue to District Court, as the injunction was only to prevent implementation of DAPA while the suit was being litigated. It seems hard to imagine how the US Department of Justice, in litigating the suit, can overcome the initial determination, now upheld on appeal twice, that the States are likely to prevail on the merits of the case. As a result, a more probable result will be that President Obama, or his successor to the Office, will need to redouble her or his efforts to seek a meaningful legislative reform through Congress which can properly address the myriad problems brought by current Immigration policies and enforcement, without an inappropriate and unconstitutional grab of Executive power to so do.
In a TV interview in 2006, I was asked by the host of the program whether any immigration reform was likely to succeed in Congress. At the time, then-President Bush was actively pursuing a proposed reform of the Immigration law. I said no, much to the host’s surprise, due to the politically charged issue of immigration and the climate of lack of cooperation in Congress. Ten years later, I have unfortunately continued to be correct: there has been no immigration reform, and the climate is more hostile politically than it was then. Immigration reform, and how to properly address the significant issues that have arisen in implementation and enforcement of Immigration Law, will be a tough political issue for the foreseeable future.