By R. Mark Frey
ST. PAUL, Minn. (June 27, 2016) — On June 23, to the consternation of many, the U.S. Supreme Court issued a curt 4-4 decision on U.S. v. Texas, a case concerning President Obama’s November 2014 executive actions, Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), in only nine words, “The judgment [of the lower court] is affirmed by an equally divided court.”
In the few days that have passed since the Court’s opinion, I’ve received a number of calls from confused and anxious individuals asking about the decision and its ramifications. I have a few observations to make in response to those calls:
Does the Supreme Court’s decision mean the end of President Obama’s November 2014 executive actions?
Yes and no. It is likely that implementation of the executive actions will not occur before he leaves office, but that’s not the end of the matter. There’s more involved.
If not, what next?
The Supreme Court merely issued a decision affirming the lower court’s February 2015 injunction stopping implementation of the executive actions pending resolution of a lawsuit questioning their validity. That lawsuit was filed by Texas and, ultimately, 25 other states in December 2014 in the Southern District of Texas seeking both to enjoin President Obama from implementing those executive actions and a decision finding him in violation of the U.S. Constitution. The actual lawsuit itself remains before U.S. District Court Judge Andrew Hanen and will presumably move forward in the coming months, well past President Obama’s term of office. And, it may well again end up with the Court following a decision by Judge Hanen and appeal to the Fifth Circuit Court of Appeals. Alternatively, some speculate the Obama Administration may request a rehearing by the Court. If the Court grants the request for a rehearing, it will no doubt delay making a decision until Justice Scalia’s replacement is confirmed by the U.S. Senate and it has its full complement of justices to hear the matter. Again, well after President Obama leaves office.
What impact will the Court’s decision have on the 2012 DACA program that went into effect in 2012 before President Obama’s November 2014 executive actions?
No impact. The 2012 DACA program remains in place and eligible individuals may file their first-time application or seek renewal of their existing deferred action.
The likely Republican presidential nominee, Donald Trump, has called on many occasions to round up “illegals” for removal from the United States. Does the Court’s decision mean that the Department of Homeland Security will commence picking up and deporting people en masse?
In the aftermath of the Court’s decision, Department of Homeland Security Secretary Jeh Johnson has made clear that in an exercise of the agency’s prosecutorial discretion, it will continue to prioritize certain people for removal per the dictates of its November 20, 2014 Memorandum. Those priorities include people posing a threat to national or border security; people with felonies, serious misdemeanors, or three or more minor misdemeanor convictions; people entering the United States after January 1, 2014; or people issued a removal order after January 1, 2014.
No doubt there are some who applaud the Supreme Court’s decision and argue the Constitution is alive and well with this blow to the Obama Administration’s overzealous attempt to use its executive power to grant amnesty to millions of “illegal aliens”. This lawsuit has nothing to do with either amnesty or separation of powers, but more with cynical politics and obstructionism. President Obama’s executive actions simply reflect an exercise of prosecutorial discretion, a power granted to the executive branch, dealing with how best to enforce existing immigration laws in view of limited resources.
But, it’s not over. Each side of the lawsuit is undoubtedly strategizing and planning its next steps for the weeks and months to come. We’re likely to hear as well renewed calls for Congress to break the gridlock and do something about immigration reform. The story continues to unfold as the hurly-burly of the immigration debate has yet to be done, nor as Shakespeare observed, has the battle been yet lost and won.
R. Mark Frey is a St. Paul, Minnesota attorney who has practiced immigration law exclusively for more than 25 years with an emphasis on political asylum and other forms of humanitarian relief, family and marriage-based immigration, naturalization, removal defense, appeals, H-1B visas, and religious workers.