In a one sentence ruling today, a deadlocked Supreme Court in U.S. v. Texas leaves intact the legally flawed Fifth Circuit decision blocking President Obama’s expanded Deferred Action For Childhood Arrivals (DACA+) and Deferred Action For Parents of Americans (DAPA) programs. These programs, first announced on November 20, 2014, have been on hold since February 2015 when a District Court Judge in South Texas issued a preliminary injunction. Today’s profoundly disappointing ruling forces millions of immigrant families who have long resided in the U.S. and who have significant connections to this country to remain in legal limbo. Equally disturbing, the decision to allow the Fifth Circuit’s opinion to stand places countless other categories of immigrants at risk of future legal attacks.
For example, while this lawsuit and the decision today does not directly affect the 2012 Deferred Action For Childhood Arrivals (DACA) program, the legal reasoning given by the Fifth Circuit could pave the way for a future assault on the 2012 initiative. Indeed, 2012 DACA recipients enjoy the exact same legal benefits –access to employment authorization and the cessation of unlawful presence– with which Texas took issue in its attack on the DAPA program. Although previous attempts to enjoin the 2012 DACA program have failed, proponents of that strategy are bound to find renewed strength from today’s ruling.
Likewise, the fate of over a dozen other categories of immigrants –who currently enjoy employment authorization by virtue of longstanding regulations– is implicated by allowing the Fifth Circuit’s decision to stand. The Solicitor General’s brief noted that from 2008 to 2014, the Department of Homeland Security (DHS) granted nearly 5.5 million initial applications and renewals for work authorization to immigrants in categories that exist as a matter of DHS discretion (i.e., categories described in 8 C.F.R. § 274a,12(a)(6), (9), (11), (c)(3), (5)-(7), (9)-(11), (14), (16)-(17), (21), and (25). Because these categories are not tethered to explicit grants of congressional authority, they possess the same characteristic Texas argued was fatal for would-be DAPA recipients.
It is noteworthy, however, that Texas never argued, and the Fifth Circuit never held, that DHS lacks the legal authority to set low-enforcement priorities in an exercise of prosecutorial discretion. Indeed, as we pointed out in our amicus brief for National Justice For Our Neighbors, Texas conceded that the “Executive does have enforcement discretion to forebear from removing aliens on an individual basis;” and it may “deprioritiz[e] removal for identified aliens.” As such, advocates can and will continue to push for generous application of prosecutorial discretion for eligible individuals.
Unfortunately, given the nature of today’s ruling, we are left to speculate how exactly to resolve the paradox that Texas’s concession creates. If DHS has the authority to “deprioritize” removal of individuals identified in the November 20, 2014 memorandum, then in what sense does it lack the authority to grant those individuals “deferred action,” a term defined by regulation as “an act of administrative convenience to the government which gives some cases lower priority?” For now, the answer to this question, like the fate of many immigrants affected by today’s ruling, will remain uncertain.