Ongoing Case Regarding Obama Amnesty Executive Order

President Obama’s immigration overhaul executive order is under fire. Last November President Obama signed an Executive Order establishing the Deferred Action for Parents of Americans and Lawful Permanent Residents Program (“DAPA”). Soon thereafter, 28 states sued the federal government claiming that it violated of the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution. The executive order was taken to make some changes to immigration policy when Congress appears unable to make any movement on an issue that affects millions of residents, both lawful and unlawful, around the country.

Deferred Action for Parents of Americans and Lawful Permanent Residents Program

In late November last year, the President announced several executive actions aiming at addressing illegal immigration concerns at the border. This including a focus on undocumented individuals with felonies (as opposed to families)–allowing some undocumented individuals to pass criminal background checks and pay back taxes in exchange for temporary stays in the U.S. without deportation. All told nearly 5 million undocumented individuals could be protected from immediate deportation as a results of the orders. Critics argued it amounted to a new law on immigration, outside of the president’s authority.

These initiatives include:

Expanded eligibility of the Deferred Action for Childhood Arrivals (DACA) program It not includes all those who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010. This also includes extension of work authorization by a year (from two to three years).

Parents of citizens and permanent residents are not allowed to request deferred action and employment authorization for three years. This is possible provided that the required background checks are passed and there was continuously residence in the United State since the beginning of 2010.

Use of provisional waivers of unlawful presence were expanded. They now includes the children and spouses of lawful permanent residents and U.S. citizens.

Immigrant and non-immigrant visa programs are being improved and modernized in an effort to grow our economy and create jobs.

Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee.

The Case

Twenty-Eight states sued to prevent implementation of the program. First, they claimed that DAPA is procedurally unlawful under the APA because it is a substantive rule that is required to undergo notice and comment, but Department of Homeland Security (DHS) has not followed those procedures. Second, the states asserted that DAPA was substantively unlawful under the APA because DHS lacked the authority to implement the program even if it did follow the correct process under 5 U.S.C. § 706(2)(A)–(C). Third, the states contended that DAPA violated the President’s constitutional duty to “take care that the laws be faithfully executed” under the Constitution.

The court found that Texas had standing to sue and decided to enter a preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that DAPA’s implementation would violate the APA’s notice-and-comment requirements. In imposing the injunction, the court did not address Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the separation of powers doctrine. In the 70-page opinion, two judges of the three judge panel wrote that Texas had shown it would incur significant costs in issuing driver’s licenses to illegal immigrants who would be allowed to stay in the country under DAPA. The judges, the ultra-conservative Jerry E. Smith and George W. Bush appointee Jennifer Elrod, also rejected the administration’s argument that the programs could not be reviewed by the courts because they stemmed from policy decisions by the President on how to enforce already existing immigration laws.

The government then appealed the injunction and motioned for a stay of the injunction pending the appeal. Basically the government acknowledged, but challenged the injunction and wanted the ability to move forward with the implementing the program during the appeal process. Its argument for stay was based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also urges that the injunction’s nationwide scope is an abuse of discretion.

The court decided to deny the stay of the injunction and await the appeal decision. Oral arguments took place on the appeal in New Orleans in July 2015, but the decision has not yet been released. In denying the stay, the court found that the states had sufficient legal grounds to bring the lawsuit and that the administration had not shown that it would be harmed if the injunction remained in place and the programs were further delayed. Also denied was a request by the administration to limit the injunction to the states bringing the lawsuit. Both decisions have put a damper in programs the President hoped would be a major piece of his legacy. Petitions under DAPA have stopped pending the decision of the appeals court. It appears that these policies may not be implemented before the end of Obama’s term later next year.

President’s Response

After the decision was announced, the President immediately vowed to appeal the court ruling and expressed confidence that he would prevail in the legal battle claiming that the law is on the administration’s side, as is history. As it is currently stalled, the DAPA program’s promises to members of the immigrant community, who have spent much of the last two years pressuring the President to act decisively to prevent deportations that separate immigrant families, could be a blow to the program’s future. Immigration organizations may already be setting their sights towards the next presidential race for new energy and possibilities.

Other Cases Give More Hope

Although the DAPA case has been a setback, the President has not received only bad news. On April 7 the same court, the Fifth Circuit, dismissed a lawsuit by federal immigration agents against deportation protections the administration gave in 2012 to young undocumented immigrants who came to the United States as children. These guarantees were put in place after the failure of the “Dream Act” which would have done the same thing in a more comprehensive way. The reason it is positive for the administration is because the justification for that program is the same as the ones the administration gave for the recent initiatives.

The appeals court found that Mississippi had failed to show that it would face any burdensome costs because of the 2012 program. This is essentially the same argument that Texas is using in the other case. Additionally, the court also agreed with the administration that the Secretary of Homeland Security has broad authority to decide how to enforce the immigration laws, another feature of the other case still under consideration.

The larger takeaway from the ongoing legal battle around immigration is twofold. On one hand, a more comprehensive immigration law from congress would make these decisions by the administration moot. The second is that, though it may take a while, there is still some hope that the administration’s decisions and executive orders will be upheld by the court eventually. The larger question still looms, will this battle be settled before another President takes the oath? We shall see.