What Next for Obama’s Immigration Action?

Tom Williams/CQ Roll Call via AP Images

Immigration reform supporters rally outside of the Supreme Court as oral arguments are heard on President Obama's executive actions which would help defer deportation for undocumented people, April 18, 2016. 

President Obama suffered a major defeat in the Supreme Court when the justices split 4-4 on the legality of his immigration action, Deferred Action for Parents of Americans (DAPA). The result of this deadlock is that a federal district court’s nationwide preliminary injunction keeping DAPA from going into effect remains in place. What options does President Obama have now?

DAPA, which was announced by Obama in November 2014, provides deferred deportation status to undocumented individuals who have been in the country since 2010 if they do not have a criminal record and if they have a child who is a citizen or lawfully present in the United States. This would allow about four million people to live temporarily without constant fear of deportation and avoid separating parents from their children.

Texas and 25 other states filed a lawsuit in federal court against DAPA. A conservative federal district court judge in Brownsville, Texas, Judge Andrew S. Hanen, found that the Obama administration failed to follow the Administrative Procedures Act and its requirement for notice and comments before rules are issued. Judge Hanen issued a preliminary injunction that keeps DAPA from going into effect anywhere in the country. The United States Court of Appeals for the Fifth Circuit, in a 2-to-1 decision, affirmed Judge Hanen, concluding that Obama exceeded the scope of his powers in the area of immigration law.

The Supreme Court’s 4-4 split means that the Fifth Circuit’s ruling stands. The case now goes back to the federal district court for a trial and a determination of whether to issue a permanent injunction. The Supreme Court’s action has no precedential effect.

The Obama administration’s legal options are limited. It can ask the Supreme Court for reconsideration. But until there is a ninth justice, nothing is likely to end the deadlock. And it seems highly unlikely that a new justice will be confirmed before the end of the Obama presidency.

The Obama administration can ask Judge Hanen to limit the scope of his injunction to applying only in Texas or even just to the states of the United States Court of Appeals for the Fifth Circuit: Louisiana, Mississippi, and Texas. But Judge Hanen has rejected this argument previously and there is no reason to believe that anything has changed his mind. Judge Hanen was a strong critic of the Obama administration’s immigration policy even before the case was assigned to him.   Indeed, it is likely that Texas and the other states filed the case in Brownsville precisely in the hope that the case would be given to Hanen.

The Obama administration can try to win at trial before Judge Hanen. At this point there is a preliminary injunction, which means that the court found a substantial likelihood that DAPA is illegal. But now the court will have to decide whether to permanently enjoin DAPA, and the Obama administration has the chance to convince Judge Hanen that he was wrong and that the policy is lawful. In light of Judge Hanen’s statements and views, few think that this is likely to succeed.

Another option available for the Obama administration is to convince other courts in the country to uphold its policy. Although Judge Hanen issued a nationwide preliminary injunction, he has no authority to bind other judges in the country. The decision of the United States Court of Appeals for the Fifth Circuit is not binding on any other federal court of appeals. The Obama administration could file its own lawsuit in federal district courts in other circuits and ask them for a declaratory judgment that DAPA is lawful. If they rule in favor of the Obama Administration, DAPA could go into effect in those areas.

The main problem with this is time. With just seven months left in the Obama presidency, it is uncertain whether there would be time for this litigation, and, obviously, uncertain what the courts would do. But at least this has the possibility of allowing DAPA to go into effect in some parts of the country.

The best alternative for President Obama is likely the simplest: He should instruct the Department of Homeland Security not to deport individuals who fit the requirements of DAPA. Because of the preliminary injunction, he cannot give those individuals deferred deportation status and the benefits that confers, such as being able to get work permits. But that does not mean that his administration must deport these individuals.

There are approximately 11 million people in the United States illegally. Each year, the federal government deports only about 400,000 undocumented individuals. President Obama can simply instruct the Department of Homeland Security as to his priorities in enforcing immigration law and that his choice is to not deport those who qualify under DAPA. 

No government brings prosecutions against all who violate the law. Limited resources make that impossible and there are laws on the books that should not be enforced. The federal government does not prosecute people for possessing small amounts of marijuana, even though this violates the federal Controlled Substances Act. No police department, thankfully, gives a ticket to everyone who goes even one mile above the speed limit.

In fact, as recently as 2012, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the president to choose whether or not to bring deportation proceedings. The Court declared unconstitutional provisions of Arizona’s controversial immigration law, SB 1070, which allowed the state to detain those thought to be in the country illegally.  The Court stressed that it is solely in the discretion of the executive branch of the federal government to decide whether to detain or deport someone who is not lawfully present in the United States. On numerous other occasions, the Supreme Court and lower federal courts have recognized broad prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

This course of action would not accomplish everything that DAPA would, but it would allow those covered by it to remain in the country until the end of the Obama presidency. Then it will be up to the next president to decide whether to continue the policy. It is even possible that a new Congress will take meaningful action on immigration. But that, like so much, will turn on who controls the White House and Congress after the November elections.

Everything about immigration policy is deeply divisive, even the choice to let parents remain with their children. It is unfortunate that the Supreme Court did not uphold DAPA. It is a policy based on humanity and common sense. The Obama administration should do all that it can to implement it, but ultimately that will depend on who next occupies the White House, controls Congress, and fills the vacancy on the Supreme Court.

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