By Lisa Soronen
The U.S. Supreme Court split 4-4 in United States v. Texas on whether President Obama's deferred action immigration program violates federal law.
As a result, the 5th U.S. Circuit Court of Appeal's nationwide temporary stay of the program remains in effect. Next, a trial court may rule on whether the program should be permanently stayed.
The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States. About 5 million people are affected.
Twenty-six states sued the United States. The 5th Circuit granted them a nationwide temporary injunction preventing the program from going into effect. The states appealed to the Supreme Court on a variety of grounds.
Now, it is as if this case never went to the Supreme Court.
In granting the temporary injunction, the 5th Circuit only determined that it was “likely” the states would succeed on the merits of the case. Now a federal district court will decide whether the states, in fact, win on the merits.
Before the 5th Circuit, the states challenged DAPA as violating the Administrative Procedures Act (APA) notice-and-comment requirement and claimed it is arbitrary and capricious in violation of the APA.
The 5th Circuit concluded the states were likely to succeed on both claims. It reasoned DAPA is a substantive rule, requiring the public to have the opportunity to offer comments—which did not occur—and not a policy statement.
DAPA is likely arbitrary and capricious, the 5th Circuit concluded, because it is “foreclosed by Congress’s careful plan” in the Immigration Naturalization Act for “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”
The 5th Circuit did not address the question of whether DAPA is constitutional. Regardless, the Supreme Court agreed to decide whether it violates the Constitution’s Take Care Clause, which states that the president shall “take care that the laws be faithfully executed.”
Standing also had been an issue before the Supreme Court. The United States argued that the states lack “standing” to challenge DAPA. The 5th Circuit disagreed, reasoning that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.
Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.