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Millions anxiously await the SCOTUS’ decision on DAPA

The U.S. Supreme Court is expected to make a decision on the President’s executive action by the end of the month, providing undocumented and mixed-status families both hope and distress.

Photo by Susan Melkisethian

As many celebrate Immigrant Heritage Month all over the United States, they also anxiously await the impending decision by the U.S. Supreme Court that will affect the lives of millions of immigrants.  In U.S. v. Texas, the Supreme Court is analyzing several issues regarding the executive action President Obama announced on November 20, 2014.  This executive action expanded the Deferred Action for Childhood Arrivals (DACA) program, by allowing the parents of any U.S. Citizen or Legal Permanent Resident to apply for a deferral of their removal.  This executive action also known as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), will make an estimated 5 million people nationwide eligible for a deferral of removal.  This would also allow them to apply for a driver’s license and a work permit.  Millions celebrated this action, but the elation did not last long.

26 states, led by Texas, filed a lawsuit to keep the program from being enacted.

Soon thereafter, 26 states, led by Texas, filed a lawsuit to keep the program from being enacted.  Texas Attorney General Ken Paxton stated, “President Obama’s actions represent a blatant case of overreach and clear abuse of power.”  In order to create standing, the state of Texas argued that the issuance of drivers’ licenses to undocumented immigrants who qualify for DAPA would create a great financial burden to the State.  On April 18, the Supreme Court heard oral arguments on the case. The Court was looking at four issues:

  1. 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?
  2. Is the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program arbitrary and capricious?
  3. Did DAPA violate the Administrative Procedure Act by failing to go through the notice-and-comment procedure?
  4. Does DAPA violate the Take Care Clause of the Constitution?

However, the primary focus of the oral arguments was on the first issue of standing and the scope of the Executive’s power of prosecutorial discretion.

Texas conceded the fact that the only injury it is claiming is a potential financial one.

On the standing issue, under the questioning of Justice Breyer, Texas conceded the fact that the only injury it is claiming is a potential financial one.  Texas argued that they would have to hire thousands of additional full time employees in order to process and issue these licenses.  However, Justice Sotomayor followed up by discussing the alternative ways in which Texas could avoid this potential economic burden of issuing drivers’ licenses.  Justice Sotomayor mainly argued that the Texas DMV’s would not have to change anything, and that they could simply continue to work as they currently do so.  Justice Sotomayor commented that customer service is already so terrible at most DMV’s that no one would notice if the DAPA population just got into the existing lines. She also noted that Texas assumes that all those eligible to apply for a license will actually do so.

Justice Breyer cited the 1923, Commonwealth of MA v. Mellon, case which stated that suffering “in some indefinite way in common with people generally” was not an adequate basis for judicial review.  In other words, a party must show that an individual has sustained or was in immediate danger of sustaining a direct injury as a result of the government action.  Justice Breyer stated that there is no direct injury caused by DAPA to the States.  The only potential “injury” is a financial one and under Mellon this is not enough.  Justice Breyer also inquired whether allowing states to sue over the incidental cost of a federal policy would mean that “every case of political disagreement where States disagree would come before the Court.”  Andrew Pincus, a visiting lecturer at Yale Law, analyzes the issue by stating “if a state can sue every time the federal government does something to increase the state’s costs, states could sue to challenge almost anything the federal government does.”

Although DAPA recipients will be able to accrue points and contribute to Social Security, it does not mean that they will actually receive those benefits.

Since DAPA would allow its recipients to receive a work permit, the issue of Social Security benefits was also brought up by Texas as another way in which this program would cause a substantial financial burden.  Although DAPA recipients will be able to accrue points and contribute to Social Security, it does not mean that they will actually receive those benefits.  The Federal government can change their mind at any time about their deferred status and therefore remove them at any time.  They could be removed before they even get anywhere near retiring.  In order to actually benefit from their contributions to Social Security, DAPA recipients would have to be provided some kind of permanent legal status.   Without it, it is highly unlikely they will make it to retirement age or accrue enough to be able to benefit.  Their contributions to the Social Security program will therefore simply be an incidental result that very likely will only benefit U.S. Citizens.  It would likely only add to the already numerous ways in which U.S. citizens benefit from undocumented immigrants.

The other issue that was heavily discussed was the actual scope of the Executive’s prosecutorial discretion power.  Justice Kennedy stated, “What we’re doing is defining the limits of discretion.”  Following that, Justice Ginsburg noted that there are an estimated 11.3 million undocumented immigrants in the country and Congress has provided funds for removing about 4 million.  “So inevitably, priorities have to be set,” she said.  Justice Sotomayor additionally stated that there are not enough resources to deport everyone.  “They are here whether we want them or not.”  Under Justice Kagan’s questioning, Texas actually conceded the fact that the Executive can re-prioritize a class of people.  According to Texas, what they are challenging is not the President’s discretion to re-prioritize, rather they are challenging the apparent “lawful presence” that this deferral provides its recipients.  However, this argument does not make sense. As stated earlier, the purpose of DAPA is to make those that qualify a low priority for the Department of Homeland Security (DHS) to pursue in removal proceedings. Meaning, DHS can still come after these people whenever it wishes to do so.

DAPA does not give its recipients permanent lawful presence, rather it simply delays their removal.

DAPA, like DACA, does not give its recipients permanent lawful presence, rather it simply delays their potential removal.  This was a source of confusion for both Justice Alito and Chief Justice Roberts.  Justice Alito asked, “How is it possible to lawfully work in the United States without lawfully being in the United States?”  While Chief Justice Roberts asked, “They’re lawfully present, and yet, they’re present in violation of the law?” These questions simply follow Texas’ argument that DAPA bestows upon its recipients a form of legal status.  Solicitor General Verrilli, arguing in favor of the Executive, addressed this issue by stating that the language of “lawful presence” in the DAPA memo could simply be struck out because that is not what DAPA does.  What it actually does is simply re-prioritize or reclassify the recipients.  It does not stop DHS from going after them.

[I]t would not make sense to tell someone they can stay here, but not allow them to be able to survive.

The ability to apply for a driver’s license and a work permit is only a logical progression because it would not make sense to tell someone that they can stay here, but not allow them to be able to survive.  As Justice Ginsburg stated earlier, priorities have to be set. Given Congress’ torpid attitude towards enacting any substantive immigration reform, a logical temporary solution to this situation is to prioritize and go after those who did not come to this country to work and be productive members of society.  Executive actions like DACA and DAPA allow DHS to focus on the real criminals who are an actual threat to national security and are simply here to be involved in criminal activities.  These individuals who cause harm to the United States should be the focus, rather than those who come here only seeking a better life and who improve not only this country’s economy but its culture as well.

There are thousands of examples of how successful undocumented students who have received deferrals under DACA have been.  From high school valedictorians to Ph.D. recipients, these undocumented students have been making a positive impact in the United States.  If DAPA were approved, this positive influence would only be greater and everyone in this country would benefit.  As President Obama stated in his remarks on Immigrant Heritage Month, “We’re a nation of immigrants.  It’s a source of our strength and something we all can take pride in.”  This source of strength is something that many are quick to forget.  Hopefully, DAPA will be allowed to serve as another reminder of how much immigrants help this country.

Josue Jimenez, Managing Editor Emeritus
About Josue Jimenez, Managing Editor Emeritus (18 Articles)
Josue Jimenez is a 2017 graduate of Campbell Law School and served as the Managing Editor for the Campbell Law Observer during the 2016-2017 academic year. He is a Los Angeles, California native, but has lived in Charlotte, NC, since November, 2003. In 2013, Josue graduated from the University of North Carolina at Chapel Hill with degrees in Global Studies (Concentration in Politics, region Latin America) and Religious Studies (Focus on Early Christianity). From August, 2013- July, 2014, Josue worked as a legal assistant at an immigration law firm in Grand Rapids, MI. During the summer of 2015, he interned at Fayad Law, PC, where he worked on immigration and criminal defense cases. In the summer of 2016, Josue interned at the Charlotte Immigration Court where he prepared draft decisions for Immigration Judges on immigration matters including cancellation of removal and asylum applications. As well as, consulted with Immigration Judges and Judicial Law Clerks regarding pending decisions. During his final semester at Campbell Law Josue interned in the Legislative Analysis Division of the NC General Assembly. There, Josue assisted attorneys in the Division with numerous projects that dealt with constituent requests to pending legislation. These projects also covered a wide range of legal issues, ranging from multi-state surveys related to health and human services, agriculture, immigration, and aviation, to research on current state and federal law related to employment, local governments, veterans, immigration, and criminal law. Josue also served as the Vice-President of the Student Bar Association and a Peer Mentor during the 2016-2017 academic year.
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