Update on the DAPA and expanded DACA case before the US Supreme Court

Dramatic developments have made the outcome of the immigration case that challenges the president’s executive actions even less clear.

As of this writing on March 18, 2016, the future of President Obama's executive action on immigration is less certain than ever. In November 2014, citing his power as chief executive, he ordered that the Department of Homeland Security expand DACA eligibility and implement DAPA. His orders were quickly enjoined by a federal judge in a lawsuit by 26 states challenging the president's actions and the matter has been tied up on appeal ever since.

In the five months since we published our last article about the appeal, dramatic events have put the future of the executive orders in greater legal limbo.

DACA, which stands for Deferred Action for Childhood Arrivals, is a program that started in 2012 that grants deferred action to eligible younger undocumented immigrants known as DREAMers who were brought into the US as children. Deferred action means that the government pledges not to take any action to deport them for two years, during which time they may also legally work.

Eligible DACA applicants must meet certain educational or military service requirements and have lived lives free of serious crime.

DACA had been in operation since 2012 when the president announced in November 2014 that the pool of eligible individuals would be expanded and the deferred action period lengthened to three years. Because of the lawsuit, the expansion never happened, but the original program is still accepting applications and requests for renewal.

The president's executive action also ordered implementation of Deferred Action for Parental Accountability or DAPA, a program with similar benefits and eligibility requirements to DACA but for undocumented immigrant parents of US citizens and legal residents. DAPA never started due to the federal lawsuit.

The injunction against the executive action was upheld on appeal. In January 2016, the US Supreme Court agreed to hear the states' lawsuit on its merits.

The issues to be decided are whether the president had the power to take the action; whether his action must go through the same public notice-and-comment requirements as a federal regulation; whether he complied with the constitutional requirement that he take care to faithfully execute the law; and whether the states had legal standing to bring the suit.

A closely divided court was expected, but then in February 2016, Justice Antonin Scalia passed away.

Senate Republicans immediately refused to consider any new appointment that President Obama might make. In mid-March, the president announced appointment of Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.

If the Republicans will not hold hearings on Judge Garland's appointment, the case will be decided by the remaining eight justices, opening up the possibility of a tied decision. In that case, the lower court holding stands. What that means is also not entirely clear. If the case went back to the federal appeals court, it could be remanded to the U.S. District Court for trial. However, by the time a trial could begin, the presidential election might be over and the whole issue moot.

Oral arguments are scheduled for April 18. In an unprecedented move, the U.S. House of Representatives yesterday voted to support the state plaintiffs in the suit and file a friend-of-the-court brief in support and against the administration.

Immigration advocates are watching with keen interest to see how the matter unfolds. In the meantime, the DACA program is accepting applications and renewals.

The lawyers at Ted Hess & Associates, LLC, in Glenwood Springs, Colorado, provide immigration services, including assistance with DACA applications and renewals, to clients in Western Colorado, notably the Latino community.