Legal issues that the Supreme Court will consider when deciding the future of DAPA and DACA+

The Supreme Court will decide the legality of these immigration programs.
The Supreme Court will decide the legality of these immigration programs.

The Supreme Court’s decision to hear the case challenging President Obama’s Executive Action on Immigration, U.S. v. Texas, sets in place a series of upcoming legal events. The case will be heard in the spring and decided before the end of June. A favorable court ruling would allow the two deferred action programs that President Obama announced in November 2014 to go ahead before he leaves office.

Professor Kevin Johnson of UC Davis School of Law has succinctly summarized three of the issues the Court will decide: (1) do the states have standing to challenge DAPA. (2) whether the Secretary of Homeland Security’s guidance known as DAPA seeking to establish a process for considering deferred action for certain because it will lead to more unauthorized immigrants having deferred action is arbitrary and capricious or otherwise not in accordance with law. (3) whether the guidance was subject to the Administrative Procedure Act’s notice-and-comment procedures.

Many lawyers believe that Texas may fail because of the “standing” issue. In the past, the courts have rejected attempts by states to challenge immigration because the state lacked standing to bring the lawsuit. The other issues will not even be considered if the states do not have standing to bring the action.

If the Court finds that the states do have standing, then it will address the question of whether the Deferred Action programs are arbitrary and capricious. Since the executive’s power to exercise prosecutorial discretion has long been recognized, it would appear not to be an arbitrary exercise of power by the Obama administration. On the third point, whether the announcement itself was required to comply with the Administrative Procedures Act, there is some uncertainty. The DAPA and DACA+ programs were not announced through the ordinary regulatory channels with ordinary notice and comment prior to implementation. This has led to worries that the Court could find a procedural defect that could halt them from going forward.

In addition to these three issues raised above, the Supreme Court asked the litigants to address the issue of whether the president’s proposed executive action violates his Constitutional duty to “take care that the laws be faithfully executed.” This was a bit of a surprise, since it would only be an issue if the Court found that the states have standing to sue.

The requirement in the Constitution that the president “take care” to see that the laws are executed appears in Article II Section 3. Presidents lack the authority to simply suspend parts of the law that they disagree with. They, may, however, set enforcement priorities, given the limited resources they have to work with. Congress does not appropriate enough money to deport everyone, so the president may use discretion in picking who to use the resources at his disposal to deport. There is little existing case law setting a clear line between what is acceptable executive discretion and what is an unconstitutional suspension of existing law. The Supreme Court’s request that both sides address this issue indicates that a broad and ground-breaking decision may be in the works.