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The U.S. Supreme Court’s 4-4 decision on June 23 in a case challenging President Barack Obama’s proposed immigration programs effectively blocks nearly 5 million undocumented immigrants residing in the United States from being granted work authorization.
The deadlocked decision leaves in place a November 2015 ruling from the U.S. Court of Appeals for the Fifth Circuit upholding a lower court’s injunction blocking the president’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expansions to the Deferred Action for Childhood Arrivals (DACA) program.
The one-page ruling (United States v. Texas, U.S., No. 15-674, 6/23/16), issued without comment from the justices, doesn’t provide any analysis of the constitutionality of the programs, leaving their long-term future uncertain.
“For more than two decades now our immigration system, everybody acknowledges, has been broken,” Obama said June 23, speaking at the White House. “And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to be.”
“The decision, or lack of one, will maintain the current status quo for employers,” said Scott Fanning, an associate in the Chicago office of Fisher Phillips. The decision, however, will not affect those original beneficiaries of the initial 2012 DACA because the challengers did not attack the executive action originally establishing DACA, Fanning noted.
Announced by executive action in November 2014, the DAPA program and expansions to the DACA program would have allowed almost half of the nation’s estimated 11-12 million undocumented immigrants three years of deportation relief and work authorization. While human capital experts have agreed that U.S. employers would benefit from the suddenly larger labor pool,
others have also expressed concerns about HR’s compliance obligations around employment verification requirements.
“The Supreme Court’s ruling will be disappointing for those who would have benefitted from DACA and DAPA and for U.S. employers who hoped to lawfully employ such persons,” said Sari Long, an immigration attorney in the Washington, D.C., office of Faegre Baker Daniels.
Kevin Lashus, a partner in the Austin, Texas, office of law firm Fisher Broyles, said the decision will add frustration to an already frustrated business community. “Since IRCA [the 1986 Immigration Reform and Control Act], employers have been deputized as forensic document experts during the I-9 process,” he said. “The unauthorized are either presenting very sophisticated fraudulent documents or are converting other people’s identification documents. Businesses shouldn’t continue to be compelled into service as immigration agents. We simply don’t have the tools. At least a favorable DACA/DAPA may have alleviated some of that heavy burden.”
Obama said he proposed the programs after bipartisan comprehensive immigration reform legislation failed in Congress in 2013. A coalition of 26 states, led by Texas, challenged the programs on the grounds that the president’s use of executive authority in these matters was unconstitutional.
The states acknowledged that the president has wide enforcement discretion over immigration matters, but also maintained that the executive branch does not have the authority to grant “lawful presence” to millions of immigrants, entitling them to various benefits.
“With little time left in President Obama’s term, it appears unlikely that he will achieve his goal of implementing immigration reform, either legislatively or through executive action,” Long said.
Marielena Hincapie, executive director of the National Immigration Law Center, headquartered in Los Angeles, said she is prepared to refile the case. “The stakes in
United States v. Texas could not have been higher,” she said. “Millions have watched, and waited, for the Supreme Court to affirm the president’s authority to inject some common sense into our immigration system. Today, the eight justices failed to act, and countless families will suffer as a consequence.”
Randy Johnson, senior vice president at the U.S. Chamber of Commerce, based in Washington, D.C., said the decision demonstrates the need for Congress to take up reasonable immigration reform. “We look forward to working with the next Congress to do just that, regardless of who wins the presidency.”
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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