President Obama’s Immigration Reform May Live Again Under Hillary Clinton

But no time soon, as Supreme Court denies rehearing

By Allen Smith, J.D. Oct 4, 2016
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At first glance, the Supreme Court's denial of rehearing Oct. 3 on lower court rulings that preliminarily blocked President Barack Obama's proposed immigration programs seems to spell the end of the programs. But the programs may rise from the dead if Hillary Clinton is elected president.

On June 23, the Supreme Court left in place a 5th U.S. Circuit Court of Appeals decision from November 2015 that upheld 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.

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Now that rehearing has been denied, the case goes back to the district court for hearings on the merits since the injunction was preliminary, not permanent, noted Paul Virtue, an attorney with Mayer Brown in Washington, D.C. "It could work its way back to the Supreme Court. Maybe by then there would be nine justices," he said. And if the ninth justice is Merrick Garland or a Clinton appointee, any permanent injunction might be reviewed by the Supreme Court.

'Latest Setback'

Reactions from some quarters, however, were that the Supreme Court justices' denial of rehearing was the last nail in the coffin of the DAPA and expanded DACA programs.

"The state of Texas' position has been validated by the U.S. Supreme Court today as [the court] denied the Obama administration's petition to rehear the immigration case. Rewriting national immigration law requires the full and careful consideration of Congress. This is the latest setback to the president's attempt to expand executive power and another victory for those who believe in the Constitution's separation of powers and the rule of law," said Ken Paxton, attorney general of Texas.

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 violated the Administrative Procedure Act.

"Once again, the judiciary has allowed the politics of obstruction to prevail over justice," said Marielena Hincapié, executive director at the National Immigration Law Center. "Legal experts across the board agree that a rehearing was not only appropriate, but necessary, in U.S. v. Texas. And yet, the justices failed to do what's best for the country by allowing this case to be reconsidered once the Supreme Court is fully staffed."

Employers' immigration attorneys were disappointed that the Supreme Court would not rehear the case. 

"The state of Texas put forth a very novel theory that succeeded before a 2-1 split 5th Circuit, which demands a full Supreme Court to consider," said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas.

"Millions of deserving individuals would have benefitted from the DAPA and expanded DACA initiatives," said Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla. "It is disappointing that the Supreme Court decided not to rehear this major immigration case. Fortunately, the decision does not affect the existing DACA program, which is being utilized by individuals who came here as children, have spent a long time in the U.S., have at least graduated from high school and who have no significant criminal issues."

Congressional Action?

While Democratic Party nominee Clinton has promised to keep fighting for Obama's executive actions on immigration and Republican Party nominee Donald Trump has stated that he would end them, the immigration battle may lie with Congress.

"Ultimately, it is up to Congress to pass legislation that would reform the existing immigration laws," Borovska said. "Whether comprehensive or piecemeal, such legislation should include common-sense options for immigrants that would strengthen the U.S. economy, protect the borders and support family unity. Attempts to pass immigration reform were made during the Obama administration, unsuccessfully, as Congress has been highly divided on immigration issues."

Outcome Still Uncertain

Should Congress fail to act and DAPA and DACA rise again to the Supreme Court level, having Garland or a Clinton appointee as the ninth justice doesn't mean that there would be a "slam dunk in support of Obama's actions," said Katheryn Wasylik, an attorney with Faegre Baker Daniels in Washington, D.C.

If the case does come before the Supreme Court again, the question at hand will be does the president have the discretion to  exclude some individuals from removal proceedings when they are a low threat and the authority to grant them work authorization, noted Mary Pivec, an attorney with Pivec & Associates in Arlington, Va. The denial of rehearing does mean there will be "a much longer battle" over immigration, she said.

"Today's decision is not a big surprise, and it means it will be up to the next administration to determine how to deal with the undocumented issue," said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "Depending on how the election goes, new executive actions might eventually take the place of DACA and DAPA and a nine-member court might end up ruling more definitively on these actions."

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