U.S. News & World Report
By: Steven Nelson
January 19, 2016
The Supreme Court announced Tuesday it will hear a lawsuit from 26 states challenging President Barack Obama’s stalled 2014 executive action to allow as many as 5 million people living in the U.S. illegally to avoid deportation and receive work permits – but the court’s ruling may also spell doom for a 2012 policy already benefiting about 800,000 people brought to the U.S. illegally as children.
The older and currently operational program, called Deferred Action for Childhood Arrivals (DACA), was announced by Obama after the DREAM Act failed in Congress and is not directly challenged in the states' lawsuit. But widened eligibility for DACA is contested alongside a challenge to the much larger Deferred Action for Parents of Americans (DAPA) proposal, which would grant a reprieve to parents of people who are American citizens or lawful permanent residents.
“I would be very nervous about DACA,” says Yale Law School professor Cristina Rodriguez, if the Supreme Court rules against the DACA extension and DAPA.
“In the other lawsuits against DACA, the petitioners weren't the states, so if the court finds the states have standing, then DACA is in trouble if the states want to call it into question,” she says.
U.S. Citizenship and Immigration Services statistics show nearly 800,000 people have benefited from DACA through fiscal 2015. The program currently requires two-year renewals, nearly 500,000 of which have been granted.
DACA requires people be younger than 16 when they arrived in the U.S., and that they came before mid-2007. The expansion would lift the current age cap for DACA, which also requires a high school education and a relatively clean criminal record.
It’s unclear why states did not challenge DACA when it was announced. Perhaps it was that potential plaintiffs felt childhood arrivals were “more worthy” or that “they really weren’t going to prevail, so why bother?” says immigration law expert Stephen Yale-Loehr, who teaches at Cornell Law School.
Arizona previously lost a legal battle to block so-called "dreamers" from getting drivers licenses and was instructed by judges on the U.S. Court of Appeals for the 9th Circuit to provide them.
Yale-Loehr says success for the states’ immigration lawsuit could introduce far-reaching limits on a president’s power, which historically has been given great deference in immigration policy and the exercise of prosecutorial discretion.
If there’s a negative ruling for DAPA and the DACA extension, he says, states would be the most likely plaintiffs to challenge the core of DACA.
“They would argue that by having to give benefits to the original DACA beneficiaries – who now have work permits and are seeking drivers licenses – they would argue that hurts them just as it’s hurting them with the DACA extension,” he says. "I'm sure a lawsuit challenging the original DACA program would be filed very quickly."
States have established standing by pointing to the expense of issuing state ID cards. Another prominent lawsuit against the 2014 orders, from Maricopa County, Arizona, Sheriff Joe Arpaio, was dismissed when judges found he could not directly link law enforcement costs with the policy’s deportation reprieve and work permits.
Hiroshi Motomura, a professor at the UCLA School of Law, says a decision from the Supreme Court against the 2014 immigration orders “would open the door” for a legal assault on DACA – but he’s not sure the outcome would dictate doom for the older program.
“Of course the issue will be what constitutional differences there are between the two programs,” he says. “We can’t really know the answer to that question without knowing yet what the court will say in this case. If the court focuses on the scale of the program, for example, it may matter that DAPA has a broader potential reach than DACA.”
Motomura says the courts also may feel differently about DACA because of the age of the beneficiaries, pointing to the court’s 1982 decision in Plyler v. Doe, which addressed states’ rights to discriminate against schoolchildren living in the U.S. unlawfully.
If the Supreme Court rules against the Obama administration, a major unknown remains whether it would do so on grounds that the administration had to submit the proposal for a public notice and comment period as required for some regulations by the Administrative Procedure Act – as District Judge Andrew Hanen found – or reach deeper like appeals judges who found the 2014 reforms are "not authorized by statute.”
“The significant differences are more numerous, of course, if the court decides on statutory grounds of some sort,” Motomura says. “At that level, for example, it’s possible that APA notice and comment requirements apply to one program but not the other, or vice versa.”
Obama’s decision to grant the broad immigration reprieve in 2014 was met with howls of constitutional usurpation and kingly disregard for democracy from opponents, including from lawyers who worked hard to strengthen executive authority during the George W. Bush administration.
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University of California at Berkeley law professor John Yoo, one of the best-known members of the Bush-era Office of Legal Counsel and author of memos authorizing “enhanced interrogation” tactics critics call torture, says Obama may inadvertently have wrecked DACA by overreaching.
“I think the deferred action for 'dreamers' will rise and fall with DAPA,” Yoo says. “If Obama loses on DAPA, which I expect he ultimately will, then he will have thrown out a measure that a majority of Americans support in order to unconstitutionally remake all of immigration law.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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