Today the U.S. Supreme Court decided the injunction on the Obama Administration’s DAPA and DACA expansion programs would remain in place while the Federal District Court hears and decides the principal matter at issue – whether the Obama Administration has the executive authority to implement the deferred action programs without the normal rulemaking process.

What are DAPA and DACA?

DAPA, or “Deferred Action for Parents of Americans,” is a program that would allow undocumented parents of U.S. citizens and lawful permanent residents to remain temporarily in the United States and to obtain work authorization rather than face removal, so long as they have not committed serious offenses.

DACA, or “Deferred Action for Childhood Arrivals,” is a similar deferred action program already in place to defer removal for children brought to the United States before the age of 16, so long as they meet certain eligibility requirements and have not committed serious offenses. DACA was originally implemented in 2012, but was expanded in 2014.

2015 Injunction on DAPA and the DACA Expansion

Prior to implementation of DAPA and the expansion of DACA in 2015, the State of Texas and other states filed suit seeking an injunction of both DAPA and the DACA expansion. The lawsuit, State of Texas, et. al, v. U.S., alleged that the Obama Administration does not have the executive authority to implement these programs as executive actions without first going through the normal regulatory process.

In order to prevent implementation of the programs while the lawsuit progresses to a merit hearing and final decision, the States sought and obtained a temporary injunction. Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas Brownsville Division granted a temporary injunction in February 2015, and the Fifth Circuit Court of Appeals upheld the injunction the following November. Today the Supreme Court upheld the injunction by a 4-4 tie. Whenever the U.S. Supreme Court is evenly split, the lower court ruling stands, which in this case is that the injunction is upheld.

Implications

First, it is important to note that the original DACA program that was implemented in 2012 remains in place and has not been impacted by the ongoing litigation and the injunction. Existing DACA recipients may continue to seek renewal of their deferred action and employment authorization.

Further, the U.S. Supreme Court decision does not hold that the Obama Administration does not have the authority generally to implement DAPA and the expanded DACA program, but rather holds that the lower court’s injunction should remain in place while litigation on the issue of the Administration’s authority proceeds in the lower court.

The Supreme Court decision does mean that both DAPA and the expansion of DACA likely will remain enjoined for at least the remainder of the Obama Administration. The matter will then rest with the new Administration whether to continue to defend and pursue implementation of the DAPA and DACA expansion programs or to withdraw the executive actions and cease defense of the programs in the ongoing lawsuit.

The Upcoming Presidential Election

The ultimate fate of the programs depends largely on the outcome of the Presidential Election in November. A President Trump would terminate the programs and cease defending their legality in the pending lawsuit, thus rendering the pending litigation moot. He has also stated that he would pursue a policy of removal for those in the country without authorization, even if they have committed no crimes and the cost, feasibility, and wisdom of removing an estimated 11 million people have been challenged by experts and lawmakers on both sides of the aisle.

A President Clinton would likely continue the legal defense of DAPA and DACA, programs she has pledged to expand. If the Administration successfully defends the lawsuit filed by the States, it is possible the programs could be implemented as early as next year, and could even be expanded to cover larger groups of people. If the Federal District Court ultimately holds that the Administration does not have the authority to implement the programs as executive actions, it is possible that the Administration could appeal to the Fifth Circuit Court of Appeals, and possibly again to the U.S. Supreme Court.

Foster will continue to follow the progress of the case in Federal District Court and through any subsequent appeals and will provide future updates as they become available. For more information on the current DACA program, which remains in place, visit our website at www.fosterglobal.com.