On Tuesday, January 19, 2016, the Supreme Court of the United States agreed to hear the appeal filed by the Obama administration relating to its plan to defer deportations and provide work authorization for certain undocumented individuals in the United States. This move clears the path for a final decision on whether President Obama’s “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) implementation and “Deferred Action for Childhood Arrivals” (DACA) expansion initiatives can move forward before the conclusion of his presidency.
How Did We Get Here?
On December 3, 2014, 26 states, led by the State of Texas, sought injunctive relief from the U.S. District Court for the Southern District of Texas to prevent the Department of Homeland Security from implementing the new DAPA program and expanding the existing DACA program. These initiatives arose from a November 20, 2014 memorandum by Secretary of the DHS Jeh Johnson that contained an order authorizing deferred action to stay deportation proceedings and award certain benefits to approximately four to five million undocumented individuals residing in the United States.
On February 16, 2015, Judge Andrew S. Hanen stopped the DHS from immediately implementing these new initiatives nationwide because:
- at least one of the states, Texas, had standing to file the lawsuit;
- the states were likely to succeed on their claims that the DHS’s actions violated the procedural requirements of the Administrative Procedure Act (APA); and
- it would be nearly impossible for the states to rollback benefits—e.g. reclaiming issued drivers’ licenses—granted by the DHS’s initiatives if the states were forced to implement DAPA before the conclusion of the entire litigation.
It is important to note that Judge Hanen did not rule on the legality of the executive action, just the preliminary injunction. Following the decision, the Obama administration appealed Judge Hanen’s decision to the Fifth Circuit Court of Appeals.
On May 26, 2015, the Fifth Circuit declined to stay the injunction pending appeal. Then, on November 9, 2015, the Fifth Circuit—although split 2-1—upheld Judge Hanen’s preliminary injunction ruling. After the defeat, the Obama administration asked the Supreme Court of the United States to resolve the following issues:
- whether the states have standing to file their lawsuit;
- whether Secretary Johnson had authority to issue the memorandum;
- whether Secretary Johnson’s memorandum was subject to the APA’s notice-and-comment procedures.
The Supreme Court has added a fourth question:
- whether Secretary Johnson’s memorandum violates the Take Care Clause of the Constitution, Art. II, § 3.
Impact on employers
The Supreme Court’s decision places immigration policy in the national spotlight as we enter the upcoming election cycle. With a decision likely coming sometime in June of 2016, a victory for the Obama administration would mean that it could immediately begin implementing the new initiatives before a new president enters the White House. As has been central to this case so far, the practical effect of this implementation—costs associated with granting benefits to DAPA beneficiaries—may mean that it would be difficult to rescind those benefits once granted.
Removing political arguments, these immigration initiatives would increase the legal workforce available to employers if implemented. With potentially millions of undocumented individuals gaining access to work permits, the pool of legally available workers will dramatically grow in some areas of the country.