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DAPA and DACA+ at the Supreme Court

Millions of immigrants see their futures on the line this spring, as the United States Supreme Court rules on two contentious immigration reforms introduced by President Obama in November 2014.

During United States v. Texas, the Supreme Court will assess the legality of these reforms (DAPA and expanded DACA) and whether President Obama exceeded the limits of his executive privileges in announcing these programs. The court – now lacking the late justice Antonin Scalia – heard arguments for US v. Texas in mid-April and expects to hand down its decision in June.

The outcome, should the even-numbered court arrive at a clear decision, could bring sorely needed clarity and direction to U.S. immigration law, or once again consign many undocumented immigrants to the shadow existence they have lived for too long.

What is DAPA and DACA+?

Undocumented immigrants in Florida and across the country anxiously await the decision, positive or negative, on the constitutionality of DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA (Deferred Action for Childhood Arrivals), programs announced by President Barack Obama in November of 2014 but in legal limbo ever since.

DAPA would defer deportation action for eligible undocumented immigrants who are parents of American-born children, either US citizens or lawful permanent residents. DACA+ would remove the original DACA program’s age limit, offer eligibility to individuals who began residing in the US on or before January 1, 2010, and extend the legal status and employment authorizations of DACA recipients to three years instead of two.

A Short, Embattled History

Shortly after the President announced DAPA and DACA+, Texas and 25 other states challenged these programs in the United States District Court for the Southern District of Texas. In the lawsuit, the states claimed the introduction of DAPA and DACA+ violates both the spirit of, and technicalities within, the Administrative Procedures Act (APA).

District Judge Andrew S. Hanen ruled in favor of the states, and issued a preliminary injunction against DAPA in February 2015. The United States Court of Appeals for the Fifth Circuit in New Orleans upheld the district court’s preliminary injunction on November 9, 2015, effectively freezing DAPA and DACA+ until this spring’s Supreme Court hearing, requested by the US Department of Justice.

What is the Supreme Court Deciding About Immigration?

The Supreme Court must first determine whether Texas, or any of the 26 contesting states has “standing”, or the legal basis for the lawsuit. Texas claims the implementation of DAPA and DACA+ would significantly hurt the state’s finances, because the programs would substantially increase the number of immigrants eligible for state-subsidized drivers’ licenses. The federal government contests the idea, suggesting these programs do not impose any undue obligations on the states, and therefore they should not be allowed to challenge their legality.

Should the justices dismiss the case for lack of standing, the injunction against DAPA and extended DACA would be lifted, and the government could begin processing applications under these programs. While many immigrant families would celebrate this news, they also need to remember the significance of November’s elections, which could result in the removal or revision of these programs depending on the new government’s agenda concerning these reforms.

If the Supreme Court proceeds with the case, the judges will determine whether DACA+ and DAPA are in any way “arbitrary and capricious or otherwise not in accordance with law”.

This not only means assessing whether the federal government correctly followed approved procedures when it announced these programs. The Court must also decide whether DAPA actually violates immigration laws set by Congress:

1) in allowing eligible undocumented immigrants to apply for work permits, in contradiction of Congress’ intent to restrict the ability of undocumented immigrants to work legally in the United States;

2) in suggesting the term “lawful presence,” (describing undocumented immigrants who would be eligible for DAPA) implies lawful status in the US, again contrary to laws passed by Congress. The federal government must satisfy the Supreme Court regarding the different meanings and implications of the two phrases in immigration law.

These questions have escalated the discussion to the constitutional level.

In a move perhaps designed to eliminate or at least guide future legal challenges, the Court broadened the case to include an examination of whether the President’s executive action in introducing DACA+ and DAPA violates the Constitution’s “Take Care” clause. This clause charges the President with the responsibility to “take care that a law be faithfully executed,” even if he or she disagrees with it.

The justices will consider whether Mr. Obama honored his responsibility to the “Take Care” clause, or whether he overstepped Presidential boundaries and encroached on Congressional rights in introducing DAPA and DACA+ through executive action.

The Court’s findings in this area could significantly impact presidential-congressional and federal-state relations on issues extending far beyond immigration.

Possible Outcomes

The Supreme Court could decide to dismiss US v. Texas for lack of standing, or reverse the Fifth Circuit decision. Either outcome could clear the way for the introduction of DAPA and DACA+. However, opponents of the law could begin the process again at the district court level, with a ruling (and potential appeal all the way to the Supreme Court) on the constitutionality of the President’s executive actions.

If the Court upholds the Fifth Circuit decision, the district court’s preliminary injunction stands and the federal government will not be allowed to implement DAPA or DACA+. The case goes back to the district court and again could eventually be appealed to the Fifth Circuit and the Supreme Court. The same scenario applies should the Supreme Court judges split their decision 4-4. The Fifth Circuit decision stands and the case proceeds at the district court level.

The Supreme Court could also produce a compromise decision, which could potentially allow DAPA and DACA+ to proceed.

How United States v. Texas Impacts Immigrants

Approximately 4.5 million undocumented individuals now live in the United States. A decision to protect the eligible among them from unnecessary deportation could give them the chance they seek to build a better life.

Dara Lind of Vox wrote of this case, “The evidence from DACA, which has protected about 700,000 immigrants for the past three and a half years, is promising. Three-quarters of DACA recipients had been able to get better-paying jobs, 30 percent had gone back to school, and 59 percent said they could help support their families. There’s evidence that DACA helps keep immigrants integrated into American life — instead of losing interest in school or career because they feel their immigration status holds them back.”

We can only hope the Supreme Court recognizes the impact this case will have on lives as well as laws as they deliberate one of this century’s most significant cases in American immigration law.

Ask Henry Lim
Do you have a question for Henry Lim? During over 20 years of practicing law, he has helped more than 10,000 families move to the United States. You can Ask Henry a question at or submit a video question by sending a link to one of our channels. For legal assistance, email or call for an appointment: (407) 512-9919. Our first consultation is complimentary.

Further Reading:

Lind, Dara. “United States v. Texas, the biggest immigration case in a century, explained” April 15, 2016.

This article is general advice and does not represent the establishment of a client-attorney relationship. For counsel specific to your circumstances, always consult a licensed lawyer.