Obama’s deferred action immigration policy put on hold by ‘equally divided’ United States Supreme Court

United States v Texas 579 U. S. ____ (2016)

The United States Supreme Court made a four-four split decision in a nine word judgement over the legality of President Obama’s deferred action immigration program. This upholds the United States Court of Appeals for the Fifth Circuit's decision to maintain a nationwide injunction preventing implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals program (DACA).

In November 2014, the Department of Homeland Security (DHS) issued a memorandum (DAPA Memo) to DHS officials, instructing them to implement DAPA, under which deportation proceedings are stayed by reason of 'deferred action', and certain benefits are awarded to approximately four to five million individuals residing unlawfully in the United States. DAPA establishes a process whereby parents of United States citizens or lawful permanent residents can apply for deferred action for a period of three years which, while not granting citizenship, allows the parent to be 'lawfully present' in the United States. The benefits of deferred action are significant, including access to working permits (and consequently, the right to work legally in the United States), as well as state-provided benefits (such as driver's licenses).

The DAPA Memo stipulates that immigration officers will be provided with specific eligibility criteria for when deferred action may apply, but the ultimate judgment as to whether an unauthorised immigrant is to be granted deferred action will be determined on a case-by-case basis. Furthermore, the DAPA Memo's bearing on the powers of the Unites States Congress and the Executive Branch of the United States Government is expressly addressed:

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.

Importantly, DAPA is nearly identical in policy terms, procedure and implementation to DACA which was introduced in June 2012 and which has not been legally challenged by any United States state. DACA permits teenagers and young adults who were born outside the United States, but were raised and attended school in the United States, to apply for deferred action status and employment authorisations. 

In December 2014, a coalition of 26 states led by Texas (the States) sought injunctive relief against the United States and DHS officials (together, the United States Government), seeking to prevent them from implementing DAPA.

Grounds for Challenge
The District Court was presented with three discrete legal issues:

  1. Did the States have standing to bring the injunctive action?
  2. Did the DHS have the necessary authority and prosecutorial discretion to institute DAPA?
  3. Was DAPA lawful (ie, was it constitutional, consistent with existing laws, and had it been legally adopted)?

The United States Government maintained that none of the States had standing to bring the injunctive action. However, the States argued that the standing requirements were satisfied because they would suffer negative effects from the United States Government’s implementation of DAPA.

In particular, Texas argued that DAPA, would "create a new class of individuals eligible to apply for driver’s licenses, the processing of which [would] impose substantial costs on its budget" (86 F.Supp3d 591 (S.D Tex 2015), p 616). In Texas, applicants pay a small fee to obtain the license, while the balance is absorbed by the state. In addition to this, states are also required to determine the immigration status of applicants prior to issuing the license. By creating a new group of individuals eligible to apply for driver’s licenses, it was argued that DAPA would increase the costs incurred by the States to verify the applicants’ immigration statuses as required by federal law.

The District Court found that the implementation of DAPA would cause the States to suffer economic injury to their fiscal interests and that a favourable remedy issued by the Court would prevent the occurrence of that injury.

The Court also held that the States had "abdication standing", based on a new theory in which standing may be found where "the federal government asserts sole authority over a certain area of American life and excludes any authority or regulation by a state; yet subsequently refuses to act in that area" (86 F.Supp3d 591 (S.D Tex 2015), p 636). The Court found that the United States Government had sole authority to govern in the area of immigration, but the DHS had demonstrated through DAPA that it had abandoned its statutory duties to enforce the relevant immigration laws.

Legality of the DAPA
As the trial was an application for an injunction, and not a full trial of the merits of the case, the States were only required to establish that there was a "substantial case on the merits" (86 F.Supp3d 591 (S.D Tex 2015), p 647). Rulings on the legality of DAPA were therefore only made to the extent that the States' case satisfied this reduced threshold.

The States challenged the authority of the United States Government to enact DAPA. The Court found that no statute enacted by Congress gave the DHS the authority "to turn the DAPA recipients’ illegal presence into a legal one through deferred action" (86 F.Supp3d 591 (S.D Tex 2015), p 657). In addition, the Court found that even though Congress had delegated to the United States Government the authority to establish immigration enforcement priorities, this did not equate to the authority to establish "a blanket policy of non-enforcement that also awards legal presence and benefits" (86 F.Supp3d 591 (S.D Tex 2015), p 660).

The States also complained that the implementation of DAPA violated the Administrative Procedure Act (APA) because DAPA constitutes a substantive or legislative rule that was promulgated without the requisite notice and comment process required by the Act. The District Court agreed with the States’ contention, finding that the DHS had adopted a new rule that substantially changed the status and employability of millions of unauthorised immigrants and that these changes had gone "beyond mere enforcement or even non-enforcement of th[e] nation’s immigration scheme" (86 F.Supp3d 591 (S.D Tex 2015), p 671). Accordingly, the DHS should have provided notice and an opportunity for the public to comment on the proposed policy prior to its implementation. By not having done so, DAPA was in violation of the procedural requirements associated with legislating a substantive rule under the APA. Further, the District Court agreed with the States that, without a preliminary injunction, any subsequent favourable ruling would result in the States facing the substantially difficult task of retracting any benefits or licenses already provided to DAPA beneficiaries. As the Court noted, "this genie would be impossible to put back into the bottle" (86 F.Supp3d 591 (S.D Tex 2015), p 673).

As such, two days before the DHS was to begin accepting applications for DAPA, the District Court judge enjoined the implementation of the program.

Subsequent appeals
On appeal, the Court of Appeals for the Fifth Circuit (by a 2-1 vote) found that the States' standing was "plain, based on the driver’s-license rationale" (809 F.3d 134 (5th Cir. 2015), p 150). The Court of Appeals went further than the District Court and found that, even if the DHS had followed the correct rulemaking process (i.e. adhering to notice and comment requirements), the DHS lacked the authority to implement the program and therefore, DAPA was substantially unlawful. The Court also rejected the United States Government's argument that the nationwide scope of the injunction was an abuse of discretion, stating that a "geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states" (809 F.3d 134 (5th Cir. 2015), p 188).

In dissent, Judge King noted that the District Court's decision was a "mistake", outlining that she was sceptical that any "incidental increase in state costs [was] sufficient to confer standing" on the States and that decisions on how to marshal DHS resources and manpower were discretionary decisions; they were the type of decisions contemplated by the DAPA Memo and they were within the ambit of the Executive Branch (809 F.3d 134 (5th Cir. 2015), pp 189, 195, 196).

On 23 June 2016, the Supreme Court delivered its nine word judgment which read: "The judgment is affirmed by an equally divided court" (579 U. S. ____ (2016)). As there was no majority decision, the injunction across all United States states currently stands.

On 13 February 2016, Justice Antonin Scalia of the Supreme Court of the United States passed away. Since then, the Republican Party majority in the United States Senate has refused to accept nominations (proposed by the President) for his replacement. Mitch McConnell, Senate Majority Leader, stated that the Republican Party was following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year, insisting that the nomination should come from the President elected in the November 2016 presidential election. With the Supreme Court therefore consisting of eight judges, the potential for split decisions is increased.

Given that the decision of the Supreme Court was split and did not provide any reasons for its judgment, the decision offers no precedent for future cases and no indication of the legality of DAPA or other executive actions regarding immigration.  The uncertainty surrounding DAPA and other executive action regarding immigration appears set to remain until after the upcoming presidential election.

From a practical perspective, this decision means that the future of millions of unauthorised immigrants living in the United States remains unclear, including ongoing inability to work and fear of deportation.

Poignantly, former acting United States Solicitor General Walter Dellinger was quoted in the New York Times as stating "seldom have the hopes of so many been crushed by so few words".

The full text of the decision can be found here.

Karina Plain is a Law Graduate at Allens.