Immigration Showdown: Defeat for the Obama Administration’s Deferred Action Policies

On Thursday, June 23, 2016, the Supreme Court of the United States reached a 4 – 4 tie on issues related to the validity of the Obama administration’s contested immigration programs, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). With this tie the injunction set by the U.S. District Court for the Southern District of Texas remains in force, preventing the U.S. Department of Homeland Security (DHS) from implementing the Obama administration’s deferred action policies. Now, immigration policy related to undocumented immigrants will be front-and-center in the upcoming election as the fate of the DAPA and expanded DACA programs may depend on who becomes the next president of the United States. United States v. Texas, No. 15-674 (June 23, 2016)

How Did We Get Here? The History of United States v. Texas 

On December 3, 2014, several 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 DHS from implementing the new DAPA program and expanding the existing DACA program. These initiatives arose in response to a November 20, 2014 memorandum by U.S. Secretary of Homeland Security 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:

1. at least one of the states, Texas, had standing to file the lawsuit;
2. the states were likely to succeed on their claims that DHS’s actions violated the procedural requirements of the Administrative Procedure Act (APA); and
3. it would be nearly impossible for the states to roll back benefits—e.g., by reclaiming driver’s licenses issued to previously ineligible immigrants—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 to resolve the following questions:

1. Did the states have standing to file their lawsuit?
2. Did Secretary Johnson have the authority to issue the memorandum?
3. Was Secretary Johnson’s memorandum subject to the APA’s notice-and-comment procedures?

The Supreme Court has added a fourth question:

4. Did Secretary Johnson’s memorandum violate the Take Care Clause of the Constitution, Art. II, § 3?

The justices of the Supreme Court issued a per curiam opinion announcing they had reached a 4–4 tie on these issues, and affirmed the Fifth Circuit’s decision to uphold the preliminary injunction.

Impact on Employers 

The Supreme Court’s 4–4 decision likely forecloses the Obama administration’s ability to implement its high-profile deferred action goals for undocumented immigrants before the upcoming election. While the underlying case in Texas will presumably move forward—with the injunction in place—the natural delay associated with the litigation will allow the next president of the United States to decide whether to keep fighting for the Obama administration’s immigration policies or wipe the slate clean.

For employers, the immigration status quo will remain. Undocumented workers are unable to obtain work authorization through the announced DAPA or expanded DACA programs until the underlying litigation is resolved or the injunction is lifted. In the meantime, employers can look at other Obama administration initiatives—such as the new STEM OPT extension rules—as a way to bring stability to their workforces. The Court’s decision, however, raises the stakes for how the next presidential administration can shape immigration policy toward undocumented workers in the United States.