United States v. Texas
United States v. Texas, 579 U.S. ___, is a United States Supreme Court case regarding the constitutionality of the Deferred Action for Parents of Americans program.
In a one-line per curiam decision, an equally divided Court affirmed the lower-court injunction blocking the President's program. The case was decided by an eight-member bench due to the death of Justice Antonin Scalia.
Background
On June 27, 2013, the U.S. Senate's Gang of Eight successfully passed their comprehensive immigration reform bill in the Senate. However, the Republican-controlled House did not initially act on the Senate's bill. When pressed to take unilateral executive action to limit deportations on Univision in March 2014, President Barack Obama replied "until Congress passes a new law, then I am constrained in terms of what I am able to do".On June 9, 2014, House Whip Kevin McCarthy announced that House Republicans had enough votes to pass the bill. However, the next day House Majority Leader Eric Cantor lost his primary election. So on June 30, Speaker John Boehner announced that he would not bring the bill to a vote. That same day, President Obama delivered remarks in the White House Rose Garden promising to "fix as much of our immigration system as I can on my own, without Congress".
Over the next eight months the Obama Administration went through sixty iterations of different possible executive actions. Finally, on November 20, 2014, President Obama delivered a primetime televised address to the nation announcing DAPA. The Office of Legal Counsel advised that the program was constitutional, finding it was similar to President George H. W. Bush's 1990 "Family Fairness" program. Homeland Security Secretary Jeh Johnson then released two memorandums directing the U.S. Immigration and Customs Enforcement to make aliens without criminal histories the lowest priority for removal, and to grant deferred action to illegal immigrants who are the parents of a U.S. citizen or lawful permanent resident.
The President's program, when combined with Deferred Action for Childhood Arrivals, would have delayed deportation of slightly less than half of the 11 million undocumented aliens in the United States. The New York Times reported that "more than 10 million people live in households with at least one potentially DAPA-eligible adult" and that "two-thirds of these adults have lived in the United States for at least 10 years". Over half the undocumented aliens eligible for the President's delayed deportation live in California, Texas, and New York.
Two weeks later, Texas Attorney General Greg Abbott, joined by twenty-six other states, sued in the United States District Court for the Southern District of Texas. Of the 3.6 million illegal aliens eligible for DAPA, 2.2 million reside in states that did not join the lawsuit.
United States District Court
On February 16, 2015, United States District Judge Andrew S. Hanen in Brownsville, Texas, issued a preliminary injunction against an executive action taken by President Barack Obama that would have given illegal immigrants legal status and protection and let them apply for work permits.The U.S. government on February 23, 2015, asked the Court to lift the injunction while it appealed his ruling to the 5th U.S. Circuit Court of Appeals in New Orleans; it also proposed that the Court could issue a partial stay that would allow every state except for Texas to start implementing DAPA.
In an opinion and order published on April 7, 2015, Hanen denied the Government's request to stay the preliminary injunction. He affirmed the earlier ruling that the plaintiff states had standing; cited statements made by President Obama regarding the applicability of the Administrative Procedure Act that DHS employees would "suffer consequences" if they failed to follow the DHS Directive; denied the DOJ request to apply the injunction only to Texas; and addressed the issue of irreparable harm with regard to both the federal government and to the states.
On the same day, the Court issued a separate order criticizing the federal government for granting three-year periods of deferred action to 108,081 individuals between the announcement of DAPA and the preliminary injunction, despite earlier statements made to the court by the Department of Justice that no action would be taken on these applications. The Court reserved the right to impose sanctions against the federal government's counsel for misrepresenting facts.
United States Court of Appeals
The Obama Administration appealed the order for a preliminary injunction and asked the United States Court of Appeals for the Fifth Circuit in New Orleans to stay the district court's injunction pending appeal. On May 26, 2015, the administration's motion for a stay was denied by a divided three-member motions panel, over dissent by Judge Stephen A. Higginson, meaning that the government could not implement DAPA until the Fifth Circuit ruled on the appeal of the injunction order itself. Arguments were heard on an expedited basis on July 10, 2015. On November 9, 2015, a three-member panel of the Fifth Circuit affirmed the district court's preliminary injunction, over one dissent.The divided circuit court affirmed the preliminary injunction and ordered the case back to the district court for trial. Judge Jerry Edwin Smith, joined by Judge Jennifer Walker Elrod agreed with the district court that Texas has standing because of the cost of issuing drivers licenses to aliens, and that President Obama's order violated the rulemaking requirements of the Administrative Procedure Act. The majority made a new finding that the Immigration and Nationality Act "flatly does not permit" deferred action. Judge Carolyn Dineen King dissented, arguing that prosecutorial discretion makes the case non-justiciable, and that there had been "no justification" for the circuit court's delay in ruling.
Supreme Court of the United States
On November 10, 2015, the Justice Department announced it would ask the Supreme Court to reverse. Texas Attorney General Ken Paxton attempted to prolong consideration of the case until the next October term but the Supreme Court only granted him an eight-day extension to file his opposition brief. The Justice Department further hastened the case by waiving its right to file a reply brief. On January 19, 2016 the Supreme Court agreed to review the case. The Court took the unusual step of asking for briefing on the new constitutional question as to whether or not DAPA violates the Take Care Clause.Due to the subsequent death of Justice Antonin Scalia, the case was decided by eight justices. On April 18, 2016, the Court heard ninety minutes of oral arguments from Donald B. Verrilli Jr., the Solicitor General of the United States, an attorney for the Mexican American Legal Defense and Educational Fund as an intervenor in support of the Government, Texas Solicitor General Scott Keller for the several states, and a Bancroft PLLC attorney representing the United States House of Representatives as a friend of Texas. Commentators complained that the arguments were "one of the most flagrant examples in recent memory of a naked political dispute masquerading as a legal one".
On June 23, 2016, the Supreme Court announced it had deadlocked 4–4 in a decision that read, in its entirety, "The judgment is affirmed by an equally divided Court." The ruling set no precedent and simply left in place the lower court's preliminary injunction blocking the program. The case may reach the Supreme Court again after Judge Hanen has held a trial.
President Obama immediately held a press conference criticizing the decision, where he blamed "spasms of politics around immigration and fear-mongering" as well as Senate Republicans for refusing to consider his nominee for the Supreme Court, Merrick Garland. Former acting Solicitor General Walter Dellinger observed "seldom have the hopes of so many been crushed by so few words". Texas Attorney General Paxton praised the result because "This is a major setback to President Obama's attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law."