Court to Hear Deferred Action Immigration Appeal

Steven D. Schwinn, John Marshall Law School

The Supreme Court today agreed to hear Texas v. United States, the case testing President Obama's deferred action program for parents of Americans and lawful permanent residents, or DAPA.

We posted on the Fifth Circuit's ruling here, including a summary of the arguments and analysis.

The case arose when Texas and twenty-five other states sued the federal government, arguing that DHS violated federal law (the Immigration and Naturalization Act) and the Take Care Clause of the Constitution, and failed to use APA notice-and-comment rulemaking, in adopting DAPA. A district court issued a nationwide injunction, and the Fifth Circuit affirmed, concluding that the states had a substantial likelihood of success on the merits of their INA and APA claims (but not ruling on the Take Care Clause claim). The courts also ruled that the plaintiffs had standing.

The government sought review at the Supreme Court, and today the Court agreed to hear the case. The issues include the INA and APA claims, and standing, and the Take Care Clause claim. This last one is a bit of a surprise, given that the Fifth Circuit did  not rule on it. (The Court in its order today asked the parties to argue the issue.)

The Court could resolve the case on standing alone, by concluding that the states lack standing. After all, Texas's standing theory is hardly rock solid: it's based on Texas's costs in issuing drivers licenses to DAPA beneficiaries. But that's a voluntary cost--Texas doesn't have to issue the licenses in the first place. Moreover, plaintiffs don't usually have standing to challenge an executive lack of enforcement. A ruling against the plaintiffs on standing seems highly unlikely, however, especially now that the Court has asked for briefing on the Take Care question. It seems that the Court--or at least four Justices--want to get to the merits.

The case could affect the fates of about four million people and their children. It'll also be a significant addition to the Court's jurisprudence on standing and the Take Care Clause, and executive authority under the INA and APA notice-and-comment rulemaking.

Finally, it could have significant play in the presidential election: the Court will likely hear arguments in April and issue an opinion in June.