United States v. Texas (2016)

Summary

On November 20th 2014, President Obama issued an executive action on immigration. The executive action contained a series of memorandums affecting immigration, and two of them (the most important ones) generated high controversy intermediately after they were announced. President Obama Plan’s part that generated the controversy and rejection that ultimately would bring this case before the Supreme Court, were the two points in the Executive action made to protect around 5 Million undocumented immigrants. These two parts were described in detail through a memorandum released by DHS (See Executive Actions DHS Memorandums ) that stablished two new programs on immigration; first one extending the requirements of DACA (Deferred action for Childhood Arrivals), and Second one, implementing DAPA (he Deferred Action for Parents of Americans program), a new deferred action protecting parents of legal residents and U.S citizens.  Both programs would had allowed millions of unauthorized immigrants to apply for deportation protection and work permits as well.

Right before the programs were about to come into force (just a few days before USCIS had planned to start receiving applications), Texas along with other 23 states sue these two points of the Executive Action. Texas, the leader of the coalition bringing this lawsuit,  argued that DAPA could negatively affect the states. Immediately, the program was put on hold. The lower courts decided in favor of the group of states lead by Texas, stopping the programs from becoming active. Later, The Fifth Circuit Court of Appeals upheld the injunction of the lower court, and  the Department of Justice with the Federal government requested a hearing before the Supreme Court. By the end of 2015 SCOTUS accepted to hear the case, which would be later be considered the most important case of the century on immigration issues. finally in June 2016 in a deadlocked decision (4-4), the Court delivered a  per curiam opinion  that upheld the lower court’s ruling.

 

What is DACA, DACA+, and DAPA?

 

 First Timeline

 Background

1965 marked the beginning the fourth and latest wave of immigration in the U.S, This fourth, and current, wave has been mostly made up of individuals from Asia, Latin America and the Caribbean. The same year this big wave started, there was a first attempt to create reforms to help immigration issues brought by the most recent wave of immigration into the country. The immigration act of 1965 abolished the national origins quota system eliminating race, ancestry or national origin as a basis for denied entry into the U.S. Thanks to this, close to 170,000 immigrants were permitted entrance from the Eastern Hemisphere per year, in addition to other 120,000 immigrants from the Western Hemisphere. A “preference system” that favored relatives of U.S. citizens and certain types of skilled workers was also adopted. One of the first cases regarding immigration issues, and affecting immigration reforms was Plyler v. Doe (1982), a case in which the Supreme Court struck down a Texas statute preventing undocumented immigrant children from receiving education. Ever since this case, undocumented children are  guaranteed a right to public education. Later on, a 1990 policy raised the annual cap on immigration to 700, 000. Cap that was later lowered to 675,000 in 1994. The Illegal immigration reform and immigrant responsibility Act of 1996, started the deportation machine when it established that Immigrants would be deemed inadmissible based on crimes that are considered “aggravated felonies.” Additionally, non-violent offenses committed prior to the passing of the law were now considered grounds for deportation or denied entry. The Act created an “expedited removal” process  that sped up deportation without a formal hearing, and created bans from re-entry for a three to ten year period for those unlawfully present in the U.S.

Things began to worsen when in 2005 the REAL ID Act came into force. Under this Act, states were now required to demand proof of citizenship or legal immigration status before issuing  driver’s licenses. This created new basis to criminalize undocumented individuals, and made it easier for some states to transfer more individuals into ICE jurisdiction. One year later, in 2006, the Secure Fence Act appeared. This Act was marked by the authorization by the legislation for the construction of a 700 miles double-tiered fence to be placed along the Mexico/U.S border and $1.2 billion were directed for financing the project. The period of 2008 to 2012 marks the period under which the “deportation machine” functioned at its maximum power, deporting over 2.5 million immigrants. Contrary to what is widely believed, President Obama would, by the end of his administration, became the president who had deported more individuals. Based on governmental data, President Obama has deported more people than any other president’s administration in the U. S history, with numbers reflecting over 2.5 million individuals removed from U.S soil.  Incidentally, Obama’s administration has deported more individuals than those removed under other administrations in the 20th century, all added up together. Just during his first term more than 1.5 million immigrants were deported. In 2008, an Obama’s expansion of the Department of Homeland Security’s secure communities program alone generated the removal of 400.,000 undocumented immigrants.

In 2012 more than 40 million foreign born people were reported to be living in the united States. Out of this 40 million, around 11.3 million were undocumented. After years and years of pressure by grassroots movements and immigrants defense organizations all across the nation, president Obama announced an executive action that would provide an employment authorization for those undocumented immigrants without a criminal record who are age 30 or younger, came to the U.S. before they were 16 years old, have lived in the U.S. continuously for at least five years and are currently enrolled in school, have a high school diploma or GED or have served in the military. This program known as DACA (Deferred Action for Childhood Arrivals), would cover about 1.76 million undocumented immigrants  who are eligible based on the established requirements. The program came into effect with no problems, and ever since many individuals eligible to receive benefits under DACA, have joined the authorized work force of the United States.

On November 20th, 2014, President Obama announced another series of executive actions on immigration accountability. These actions contained two important memorandums that generated most controversy, and that, if implemented, would signify the deferral and temporary relief of about 5 million undocumented immigrants, over half of which lived in California, Texas, and New York. The expansion of DACA, also known as DACA+, a program that would extend the 30-year limitation for eligibility, and the creation of DAPA ( Deferred Actions for Parents of America), a program that would benefit parents of U.S citizens and permanent residents; was immediately challenged by Texas Attorney General Ken Paxton, who was joined by twenty-six other state. The twenty-six states led by Texas considered that these executive actions were unconstitutional and sued in the United States District Court for the Southern District of Texas, action that put the program on hold just a couple of weeks before the date that USCIS (United states Citizen and Immigration Services) had set to start taking applications.

 Procedural History

June 30, 2014, After an immigration reform bill is decided to not being voted by the house, President Obama promises he will try to fix the immigration system as much as he could without congress; given that the bill did not pass.

November 20, 2014, President Obama delivered an address to the nation announcing the executive actions to implemet DAPA and DACA+.

December, 2014, Texas Attorney General Ken Paxton, joined by twenty-six other states, sued the Executive Actions in the U.S District Court for the Southern District of Texas.

February 16, 2015, case goes to  United States District Court. the U.S District Judge in Brownsville, Texas, issued a preliminary injunction against the  executive action, putting the programs on hold.

February 23, 2915. The U.S. government asked the Court to lift the injunction while it appealed his ruling to the Fifth Circuit Court of Appeals in New Orleans; also proposing that the Court could issue a partial stay to allow (every state, but Texas) to start implementing the programs.

April 7, 2015, Hanen denies the Government’s request to stay the preliminary injunction.

May 2015, 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.

May 26, 2015, the administration’s motion for a stay was denied by a divided three-member motions panel, meaning that the government could not implement DAPA until the Fifth Circuit ruled on the appeal of the injunction order itself.

July 10, 2015,  United States Court of appeals hears Arguments on an expedited basis.

November 9, 2015, a three-member panel of the Fifth Circuit affirmed the district court’s preliminary injunction, there was one dissenting opinion.

November 10, 2015, The Department of justice asked the Supreme Court to hear the case.

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 of the Constitution 

April 18, 2016, the Court heard ninety minutes of oral arguments

June 23, 2016, SCOTUS had deadlocked, 4-4, decision. After the death of Justice Antonin Scalia, there were just  eight justices deciding the case. The full decision simply read “The judgement is affirmed by an equally divided court.” The ruling set no precedent and just upheld the fifth circuit maintaining the preliminary injunction blocking the program.

Issues

  • Do states that provide subsidies to persons who are granted deferred action have standing to sue because the new guidelines will lead to more persons being eligible for deferred action?
  • Is the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program arbitrary and capricious?
  • Did DAPA violate the Administrative Procedure Act by failing to go through the notice-and-comment procedure?
  • Does DAPA violate the Take Care Clause of the Constitution?

 

 Arguments by Petitioner (United States)

 

 

 Arguments by Respondent (Texas)

Texas and the other 26 states argued that DAPA violated the Administrative Procedure Act given that it did not go through the “Notice and Comment Process”. Their second argument was that the establishment of both DACA+ and DAPA were arbitrary and capricious. The states lead by Texas, argued additionally that DAPA violated the Take Care Clause which clearly states the President’s power.

 Fifth Circuit Decision

The Fifth Circuit, in a 2-1 decision, affirmed the district court ruling; Therefore, the programs of DAPA and DACA+ remained inactive after the long delayed decision. The majority opinion stated that the cost of issuing driver licenses to those undocumented individual benefited by the executive action would directly affect the states. Additionally, the majority opinion agreed that the order violated the rulemaking requirements of the Administrative Procedure Act. The Fifth Circuit also found that the Immigration and Nationality Act, clearly does not permit Deferred Action. In the dissenting opinion, judges King argued that the authority of Prosecutorial Discretion made the case non-justiciable, and highly criticised the delay of the Fifth Circuit to deliver the opinion on the case.

Supreme Court Decision

The supreme Court of the United States had deadlocked (4-4) decision (Just 8 justices after the death of Justice Antonin Scalia). Setting no precedent, it simply upheld the Fifth circuit decision of maintaining the preliminary injunction blocking the program.

 Majority Opinion (per curiam opinion)

The judgment is affirmed by an equally divided Court. In an unsigned per curiam opinion, the equally divided Court affirmed the judgment of the lower court.

 Full Text of Opinions

5th Circuit Full Majority Opinion

5th Circuit Full dissenting Opinion

Supreme Court Full Majority Opinion (per curiam opinion)

DHS Memorandums

Executive Actions DHS Memorandums  (DACA+ and DAPA)

Executive Actions DHS Memorandums  (Priorities for Removal)

 Decision Analysis

 

 

 Significance / Impact

United States v. Texas is considered to be the most important case heard by the Supreme court during this term, along with being one of the most important cases regarding  immigration issues in the past century.  The decision of the Court, although being deadlocked (meaning there was no actual decision delivered), simply means that the decision of the Fifth Circuit stands, keeping the Deferred Action programs on hold. A hold that now seems to be bound to stay for ever in this stage, given that elected president Trump has not expressed any interest on these types of prosecutorial discretions as the way to solve the issues of immigration. On the contrary, Trump has constantly expressed his intentions of eliminate the first of Obama’s executive actions back in 2012 with DACA.

Some people argue that this was the best decision, taking into consideration that, had Justice Scalia lived, the law would had been undoubtedly struck down, eliminating any possibility of future expansions of the current programs; or had it gone the opposite way, it would have meant the significant extension of the power of the executive (powers that should be reserved for emergencies). Based on this escenario, many sustain that this was the best decision for the case. However, the reality for the 5 million people whose expectations were with a ruling in favor of President Obama’s actions, is a totally different one. Millions of undocumented immigrants and their families had been waiting since November 20th, 2014 to find out if they were going to be finally able to keep their families together, being protected from deportation, having the chance to work/go to school, or simply live legally in the U.S without any of that daily fear. One of the biggest impact is that now they know for sure they cannot do any of those things.

The case definitely suggest something important about the ability of the court  to solve divisive disputes without all nine judges. However, the most important part of the significance and impact of this important case is mainly divided in two factors. First, its importance in reference to executive power, its permissible extensions, and whether it should be used and expanded just in times of emergency, or indeed any time that the president considers that the general good requires it. The question of whether president Obama had exceed the limits of his power when he announced the implementation of this program, was the first element that raised the complex controversy that led Texas to sue right after the official announcement. On the other hand there is the humanitarian element, the implication of these programs for almost 5 million families hopeful and ready for these programs to become their only chance to have a more decent life standard.

 Second Timeline

 Scholarly Commentary and Debate

 

 

 Constitutional Provisions

  • Take Care Clause
  • Article III “only cases or controversies” (this was at some point argued to be an ‘hypothetical’ case, as the programs had not yet been implemented; therefore, consequences could not be measured just yet)

 Government Law or Action Under Review

Two memorandums of a series of Executive Actions announced by President Obama on November 20th 2014 creating a new program called DAPA ( Deferred Action for Parents of Americans) that would benefit parents of U.S citizens, and U.S permanent residents with a two-year employment authorization while protecting them fro being deported. The second memorandum created an extension for the already stablished DACA (Deferred Action for Childhood Arrivals). The extension is known as DACA+, and pretended to extend the coverage of the program by increasing the 30 year age limit requirement.

Executive Actions DHS Memorandums  (DACA+ and DAPA)

 Important Precedents

Toledo-Flores v. United States (2006)

Lopez v. Gonzales (2006)

 Arizona v. United States (2012) 

 

 Important Subsequent Cases

Jennings v. Rodriguez (2016)

Web Resources

Academic Books, Articles and Law Reviews

  • BEFORE THE COURT IN UNITED STATES V. TEXAS.” Supreme Court Debates 19, no. 6 (September 2016): 41. MAS Ultra – School Edition, EBSCOhost.
  • “Does the Deferred Action for Parents of Americans and Lawful Permanent Residents   Program Violate Federal Law?.” Supreme Court Debates 19, no. 6 (September 2016): 21. MAS Ultra – School Edition, EBSCOhost.
  • D’Ottavio, Kari E. “Deferred Action for Childhood Arrivals: Why Granting Driver’s Licenses to DACA Beneficiaries Makes Constitutional and Political Sense [comments].” Maryland Law Review no. 3 (2012): 931.
  • Family, Jill E. “DAPA and the Future of Immigration Law as Administrative Law null [article].” Washburn Law Journal no. 1 (2015): 89.
  • Thronson, David B. “CLOSING THE GAP: DACA, DAPA, AND U.S. COMPLIANCE WITH INTERNATIONAL HUMAN RIGHTS LAW.” Case Western Reserve Journal Of International Law 48, no. 1/2 (Spring2016 2016): 127-136.
  • Kuchins, Olga Y. “Out of the Shadows: Deferred Action for Childhood Arrivals, Deferred Action to Parents of Americans and Lawful Permanent Residents, and Executive Prosecutorial Discretion in Immigration Law null [notes].” Hastings Constitutional Law Quarterly no. 3 (2015): 705.
  • “LOWER COURT HOLDING IN TEXAS V. UNITED STATES.” Supreme Court Debates 19, no. 6 (September 2016): 16. MAS Ultra – School Edition, EBSCOhost.
  • Margulies, Peter. “THE BOUNDARIES OF EXECUTIVE DISCRETION: DEFERRED ACTION, UNLAWFUL PRESENCE, AND IMMIGRATION LAW.” American University Law Review 64, (June 1, 2015): 1183. LexisNexis Academic: Law Reviews, EBSCOhost.
  • PADILLA-RODRÍGUEZ, IVÓN. “THE NEGLECT OF THE IMMIGRANT CHILD: MAKING THE CASE FOR A CHILD-CENTERED APPROACH TO UNITED STATES IMMIGRATION POLICY.” Phi Kappa Phi Forum 96, no. 4 (Winter2016 2016): 12-15. Business Source Complete, EBSCOhost.
  • Warren, Robert, and Donald Kerwin. “Beyond DAPA and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the United States null [article].” Journal On Migration And Human Security no. 1 (2015): 80.
  • Schwinn, Steven D. “Does the Guidance by the Secretary of Homeland Security Directing Department Officers to Consider Deferred Action on Removal or Certain Aliens Violate the Immigration and Naturalization Act, Notice-and-Comment Rulemaking under the Administrative Procedures Act, or the Take Care Clause of the Constitution: Can a State Challenge That Guidance in Federal Court (15-674) null [article].” Preview Of United States Supreme Court Cases no. 7 (2015): 269. HeinOnline, EBSCOhost.
  • Wadhia, Shoba Sivaprasad. “REMARKS ON EXECUTIVE ACTION AND IMMIGRATION REFORM.” Case Western Reserve Journal Of International Law 48, no. 1/2 (Spring2016 2016): 137-142. MasterFILE Elite.
  • Walsh, Kevin C. “THE COURT AFTER SCALIA.” First Things: A Monthly Journal Of Religion & Public Life no. 266 (October 2016): 45-51.
  • “LOWER COURT HOLDING IN TEXAS V. UNITED STATES.” Supreme Court Debates 19, no. 6 (September 2016): 16. MAS Ultra – School Edition.

 Contributors

Spring 2016: Lina M. Machado – Bejarano

 Tasks for Future Contributors

  • Coding the opinions of the Fifth Circuit.
  • Complete the “Scholarly Commentary and Debate” section
  • Complete the “Decision Analysis” section
  • Complete “Arguments by Petitioner (United States) section