Supreme Court Hears Oral Arguments Regarding Obama’s Deferred Action Programs

Unfreeze DAPA Rally Photo by Victoria Pickering

Unfreeze DAPA Rally Photo by Victoria Pickering

On April 18, the United States Supreme Court heard oral arguments in U.S. v. Texas, the lawsuit brought by Texas and 25 other states attempting to invalidate President Obama’s recent executive actions on immigration. The ramifications of the Court’s decision in June will have lasting effects, whichever side wins.

President Obama announced in November 2014 a series of administrative actions designed to reform the Department of Homeland Security’s (DHS) enforcement priorities in the absence of much-needed comprehensive immigration reform. The most publicized, but also most criticized, part of the announcements was the introduction of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expansion of the Deferred Action for Childhood Arrivals (DACA) program (originally established in 2012). Together, the programs grant “deferred action,” or a temporary reprieve from removal (deportation), and work authorization to many undocumented migrants in the U.S. – those who have U.S. citizen or lawful permanent resident children under DAPA, and those who came to the U.S. as children under DACA.

Shortly after the President’s announcements, Texas and 25 other states filed a lawsuit in federal court in Brownsville, TX, challenging the legality of the DAPA and expanded DACA programs, resulting in a nationwide injunction issued by Judge Andrew Hanen in February 2015, just before the rollout of expanded DACA began. In November 2015, a narrowly divided panel of the Fifth Circuit Court of Appeals upheld the injunction, and the U.S. Supreme Court granted certiorari earlier this year upon the U.S. government’s appeal. The issues before the Supreme Court were whether the suing states had legal standing to bring the case in the first place, and if the Obama administration had the legal authority to create the DAPA and DACA programs at all. The states assert that having to spend significant amounts of money issuing driver’s licenses to DAPA/DACA recipients is an “injury” that the states would incur if the programs move forward – an injury which gives them standing, or the ability to bring the lawsuit. The states also maintain that the DAPA/DACA programs represent an unconstitutional attempt by the Obama administration to write new laws and grant legal status to people whom Congress has not authorized.

First to speak inside the courtroom was Solicitor General Donald Verrilli, representing the U.S. government. First addressing the states’ standing arguments, Verrilli noted that the choice to provide driver’s licenses to DAPA/DACA-eligible individuals belongs to the states themselves, suggesting that the proper remedy would have been for the states to change their own policies, not sue the federal government. In other words, Verrilli argued, states should not be determined to have standing to bring a lawsuit just because they will allegedly suffer an injury that they have brought upon themselves.

Moving on to the legality of the deferred action programs, Verrilli pointed out that the states concede that the executive branch has the authority to set immigration enforcement priorities and defer the removal of certain individuals. In fact, as several of the Justices noted, Congress has only appropriated funding to remove about 400,000 undocumented individuals each year. Given the fact that an estimated 11 million undocumented immigrants currently live in the U.S., DHS has no choice but to set priorities for who among those 11 million will be removed.

Rather, the states seem most to object to the granting of work authorization to DAPA/DACA-eligible individuals because they believe that only those with lawful status can obtain such work authorization. Several of the Justices and Verrilli engaged in a lengthy exchange about the difference between “lawful presence” and “lawful status” that underscores the states’ fundamental misunderstanding of immigration law. Chief Justice John Roberts expressed confusion over how the administration could write in its brief that “[t]he individuals covered are lawfully present in the United States,” and yet a page later, write that “[a]liens with deferred action are present in violation of the law.” But Verrilli correctly explained that while those terms might seem to mean the same thing in common parlance, they “mean[] something different to people in the immigration world.” As Verrilli clarified, and as others have previously described, deferred action is merely a temporary reprieve from removal – as Verrilli noted in oral argument, it is a recognition that the U.S. is “officially tolerating [one’s] presence.” But it does not confer a legal status onto the person, a legal term of art signifying one’s valid immigrant or nonimmigrant visa classification.

The repeated conflation by Texas and its cohorts of these two distinct terms as this case has made its way through the court system is simply not legally accurate. Verrilli conceded later on that he understood the confusion that the phrase “legal presence” in the DAPA memo had created and even offered that the Court could “put a red pencil through it” without changing what the program would accomplish. I’m not sure what would be more disappointing – that the Justices honestly do not understand these basic immigration law concepts, or that they are disingenuously pretending not to.

At the conclusion of the Solicitor General’s remarks, attorney Thomas Saenz of the Mexican American Legal Defense and Education Fund (MALDEF) was permitted fifteen minutes to speak on behalf of three undocumented mothers living in Texas who would qualify for DAPA. He argued in support of the administration’s policy and reiterated many of the arguments that Verrilli made regarding the states’ lack of standing to bring the present case.

Representing Texas and the other states, Texas Solicitor General Scott Keller was next up to the podium. He began by calling DAPA “an unprecedented assertion of executive power” and “one of the largest changes in immigration policy in our nation’s history.” However, Justice Sonia Sotomayor cut him off to mention the Family Fairness programs, under which Presidents Ronald Reagan and George H.W. Bush granted deferred action and work authorization to approximately 40% of the immigrant population in the U.S. in the late 1980s and early 1990s.

On the standing issue, Keller yet again conflated the idea of lawful status and lawful presence, even though several Justices hammered on the difference between granting someone deferred action and work authorization, and noted that Congress first permitted work authorization for individuals granted deferred action way back in 1986. In response, Keller seemed to argue that Congress would not have approved of granting such work authorization under the DAPA/DACA programs simply because of the large number of potentially eligible individuals – an argument that several Justices did not find very convincing.

Finally, attorney Erin E. Murphy argued on behalf of the U.S. House of Representatives, which had submitted an amicus curiae brief in support of the states. Murphy spent much of her time repeating the same misleading arguments that Keller had made – that granting someone deferred action is the same as granting them lawful status in the U.S., which only Congress (and not the executive branch alone) can do. After a brief rebuttal by Solicitor General Verrilli, the arguments were over, just over an hour and a half after they began.

The outcome of the case is still uncertain, not least because of the unexpected death of Justice Antonin Scalia earlier this year. Congressional Republicans’ refusal to confirm his replacement means there is the possibility of a 4-4 split in this and all of the other cases yet to be decided before his passing. While some predict that the case will be decided along ideological lines, others still find it likely, as many did before the oral arguments, that a majority of the Justices will reject the case on standing grounds.

Furthermore, while a split decision means that the lower court ruling will stand, it will not be binding precedent, creating the possibility that the Obama administration and/or immigration advocates could bring suits in other Circuits – potentially resulting in the DAPA and expanded DACA programs being allowed to move forward in some states but not in others. Then again, even if the Supreme Court upholds the legality of the programs, there is even more uncertainty about what will happen to them after the next President is elected this November.

In short, while the Court’s decision in U.S. v. Texas is eagerly anticipated, it may only lead to more chaos and uncertainty – yet another reason why comprehensive reform is needed to fix this country’s broken immigration system.


  1. […] of the litigation. That injunction eventually made its way to the U.S. Supreme Court, which heard oral arguments in the case in April 2016. The Supreme Court’s decision was eagerly anticipated by both the […]


  2. […] He called DACA a legal “status,” which simply is not true (even though that point may have confused some of the Supreme Court Justices last year).  He asserted that the DACA program led to the […]


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