Predicting How the Supreme Court Will Rule in United States v. Texas

By: Gordie Rosoklija

United States v. Texas is a pending case before the Supreme Court on the constitutionality of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. It is widely regarded as one of the most significant immigration cases to ever come before the Supreme Court.

On November 20, 2014, President Barack Obama announced the DAPA program which grants deferred action to undocumented immigrants who are the parents of U.S. citizens or lawful permanent residents. DAPA’s validity was immediately challenged by Texas and 25 other states and on February 16, 2015, United States District Judge Andrew S. Hanen of the District Court for the Southern District of Texas, issued a preliminary injunction against DAPA’s implementation. On November 9, 2015, the Court of Appeals for the 5th Circuit, in a 2-1 vote, affirmed the District Court’s injunction. On January 19, 2016, the Supreme Court agreed to review the case.

There are two overarching questions that the Supreme Court will now decide: (1) Does the State of Texas have standing to legally sue the federal government over DAPA’s implementation and (2) Is the DAPA program within the President’s authority or does it encroach into an area where Congress should determine immigration policy.

For the first question, standing is a judicial doctrine requiring that the Plaintiff (the State of Texas in this case) demonstrate actual harm by the proposed regulation – meaning Texas has to demonstrate that it will suffer direct and concrete injury as a result of DAPA’s implementation. Texas has argued that it would cost the state money to issue driver’s licenses to DAPA recipients because Texas partially covers the cost of producing a license. For the second question, both sides agree that the President has the power to defer immigrant deportations. Texas, however, has argued that DAPA goes beyond this point by granting work permits for DAPA recipients and thereby granting lawful presence to DAPA recipients.

Following oral argument on April 18, 2016, it is expected that the court will be predictably split on the above issues with the more liberal justices(Ginsburg, Breyer, Sotomayor, and Kagan) siding with the Obama Administration, and the more conservative justices(Alito and Thomas) siding with Texas. The two remaining justices, Kennedy and Roberts, typically side with the more conservative wing of the court, but they have certainly broken rank in the past, including their decision to side with the Obama Administration in striking down Arizona’s SB 1070 law, which largely focused on identifying and punishing unauthorized immigrants. Justice Scalia, a predictably conservative vote, passed away on February 13, 2016, which leaves 8 justices to decide the current case.

One potential outcome is for Justice Roberts to side with the more liberal wing of the court on the first question of Texas’ standing, thereby issuing a 5-3 decision in favor of the Obama Administration and allowing DAPA implementation to proceed. Justice Roberts’ past decisions have indicated a narrow view of the standing doctrine. In Massachusetts v. EPA, for example, he opposed Massachusetts’ standing to sue the federal government by arguing in part: “The constitutional role of the courts, however, is to decide concrete cases – not to serve as a convenient forum for policy debates.” He has also previously been quoted publically as stating that “It’s a high priority to keep any kind of partisan divide out of the judiciary.” It is therefore entirely possible that Texas’ case will be dismissed based on a lack of standing to challenge the constitutionality of the DAPA program. Justice Kennedy siding with the moral liberal wing of the court on this issue would lead to a similar outcome – a 5-3 or even 6-2 decision against granting standing and in favor of the Obama Administration.

If the court were to instead split 4-4 or rule in favor of Texas’s standing argument, the case would then proceed to the second question – does granting work authorization under DAPA go beyond the President’s authority on immigration policy. This is a more novel question before the court, but it does again seem to strongly favor the Obama Administration. Present day federal regulations under 8 CFR 274a.12 explicitly state that an “an alien who has been granted deferred action” is permitted to apply for employment authorization. One potential counterargument is that there is effectively no limit to the class of aliens who could be granted deferred action.

A 4-4 split by the Supreme Court on both of the above issues would mean that the decision that was issued by the lower court, in this case the Court of Appeals for the 5th Circuit upholding the District Court’s injunction, would remain intact. The 5th Circuit decision, however, would not be binding on other jurisdictions, meaning states that are not part of the 5th Circuit would have the freedom to seek implementation of the DAPA program. The only three states that are part of the 5th Circuit are Louisiana, Mississippi, and Texas. The State of California, for example, in an amicus brief submitted to the Supreme Court cited the widespread benefits of implementing the program: “California’s economic growth has depended to a significant degree on undocumented workers. California’s agriculture and extraction industries employ 3.6 immigrants for every one native worker, compared to a national industry average of 1.5 immigrants per native worker. Undocumented immigrants, representing just 7% of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers according to one estimate. Other estimates place these figures even higher. Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) — an amount larger than the entire respective GDPs of 19 other States.”

A 4-4 split would therefore mean that the injunction against DAPA would stand, but it would only apply to the three states that are part of the 5th Circuit(Louisiana, Mississippi, and Texas). A different Circuit Court could rule that DAPA can move forward, meaning DAPA would be permissible in some parts of the country and impermissible in other parts. This, of course, would create a chaotic set of circumstances, which is why the prevailing belief is that Justice Roberts or Justice Kennedy is likely to vote in favor of dismissing the case based on a lack of standing for Texas to sue the federal government, thereby allowing DAPA implementation to proceed.

The Supreme Court is expected to render a decision in United States v. Texas by the end of June 2016. GIA Firm will continue to provide novel analysis on the Supreme Court’s decision and the future of DAPA implementation.

#SCOTUS #Immigration #DAPAConstitutionality #Standing