OPINION: United States v. Texas: Where Do We Go from Here?

by Matthew Bray

By now, most people have heard about the decision last month by the US Supreme Court that effectively halted the Obama administration’s plans to defer deportations of and grant work cards to millions of undocumented immigrants present in the US. These programs, known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA (Deferred Action for Childhood Arrivals), would have effectively temporarily blocked the deportations of the millions of people whose children are US citizens or lawful permanent residents (Green Card holders), or who were brought to the US as children and were either in school or the military or had been. (A prior DACA program remains in effect.) These programs were announced by the president in November 2014 after years of Congressional inaction on comprehensive immigration reform, along with a number of other initiatives, most of which have proceeded.

Supreme Court Might Reconsider the Case

The Supreme Court’s decision, while terribly disappointing for millions of people, is not the end of the story. In fact, the one-sentence decision affirmed the decision of the lower court because the court’s voting members were tied 4-4, which was only possible because the late Justice Antonin Scalia’s successor has not yet been confirmed by the Senate. As such, the decision is not based on the merits of the legal arguments in the case. That means that if the case—or a version of it—makes its way to the court again once Scalia’s replacement is seated, it is more likely that we will see a decision that will go to the core issues of the case: whether the twenty-six states that sued to stop the programs had “standing” to sue—i.e., that they had articulated an injury they would suffer if the programs were allowed to proceed—and whether the president’s prosecutorial authority permits the Department of Homeland Security (DHS) to create programs that would affect the “lawful status” of such a large class of people. The Fifth Circuit’s decision (which was affirmed by the Supreme Court by its tie vote) found that the states did have standing and that the president did not have the authority to create such sweeping programs.

Lawful Status

As an immigration lawyer it was frustrating to hear that one of the reasons that the Fifth Circuit found that the president did not have the authority to create the DAPA/expanded DACA programs was because they created a “lawful status,” a power reserved only for Congress. The authority, however, for DAPA and both DACA programs is the president’s authority under the Constitution’s “Take Care” clause—that is, the prosecutorial authority to enforce the immigration laws, and, inevitably, to decide when and under what circumstances it is appropriate not to enforce the laws.

We call this prosecutorial discretion and it has a long history in all branches of law enforcement, and particularly in immigration law. Neither DAPA nor either DACA program grants a lawful status. All these programs do is to make a time-limited promise not to pursue the deportations of individuals granted the benefits of these programs, and grant a temporary work authorization during that same period of time. Individuals granted deferred action are not accumulating “unlawful presence” while the grant is valid. This fact is relevant to some specific provisions of immigration law (such as the three- and ten-year unlawful presence bars); however, it’s not at all the same as granting a "lawful status."

In fact, most immigration lawyers with DACA clients make it painfully clear to their clients that their holding DACA does not grant them a lawful status—it is not a status from which they can adjust to permanent residence or become a citizen, and there is no guarantee it will be extended in the future. Given that the Fifth Circuit’s opinion appears to be based in part on this misunderstanding is yet another reason to take comfort in the fact that the Supreme Court’s decision is not a decision on the merits of the case. We hope future litigation will make clear this very important legal distinction.

Other Executive Actions Going Forward

Unfortunately, this next step is unpredictable. It is unlikely that much will happen with regard to this case until the next president is elected. That president will not only choose Scalia’s successor, but whether to proceed with these programs at all. (Presumptive Democratic nominee Hillary Clinton has made clear she would support the implementation of these programs; presumptive Republican nominee Donald Trump says he will not.) In the meantime, although the implementation of the DAPA/expanded DACA programs is now stayed (and likely to be permanently enjoined once the case goes back to the district court, which has made clear it will find both programs unconstitutional), there are still things that the president and the administration can do in the absence of comprehensive immigration reform.

For one thing, the administration can certainly move forward on many of the other initiatives announced back in November 2014 (such as the expansion of the provisional unlawful presence waiver program and the implementation of an entrepreneurs program). In addition, the administration can continue to abide by the long-standing prosecutorial discretion guidance that makes clear that the government’s limited immigration enforcement resources should be focused on arresting, detaining, and removing individuals who actually pose a threat to national security and public safety, and that the government should not be spending its limited resources removing people who have been living and working peaceably in the US for many years—people who came here as children, and people here with US citizen and permanent resident families. This very basic exercise of prosecutorial discretion—if it were to be fairly and evenly implemented nationwide—would likely drastically reduce the number of deportations, buying millions time until Congress moves on comprehensive immigration reform.