Justices May Skirt Constitutional Questions in Immigration Case

Supreme Court instead asks Texas solicitor general how DACA, DAPA harm the state

By Allen Smith, J.D. Apr 19, 2016

The constitutional questions in Texas’ challenge of President Barack Obama’s immigration programs have attracted the bulk of media attention and interest. 

Did Obama have the prosecutorial discretion, in late 2014, to give nearly one third of the nation’s estimated 12 million undocumented immigrants three years of deportation relief and work authorization? In other words, are the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and the expanded Deferred Action for Childhood Arrivals program (DACA) constitutional? Or did Obama’s actions violate the Take Care Clause of the Constitution—the clause that requires that care is taken in the faithful execution of the laws of the United States.

Interesting though these questions may be, the case probably will be decided on the simple question of whether Texas, which challenged DAPA and DACA as unconstitutional, had been injured by the programs and therefore has “standing” so that it could sue. Paul Virtue, an attorney with Mayer Brown in Washington, D.C., said the Supreme Court is likely to avoid all of the constitutional questions and rule that Texas did not have standing to sue.

David Grunblatt, an attorney with Proskauer in Newark, N.J., agreed, noting that Chief Justice John Roberts Jr. spent much of the April 18 oral argument asking both sides tough questions about standing.

The floodgates of litigation might open if Texas is decided to have suffered an injury such that it can sue. Texas is already using “taxpayer standing” to sue the United States based on the resettlement of Syrian refugees in Texas, noted U.S. Solicitor General Donald Verrilli Jr., arguing on behalf of the United States. “And that will just be the beginning” if it is determined that Texas has standing to sue in this case, Verrilli predicted.

Texas’ argument for standing in the DAPA and DACA case is based on the requirement under Texas law that employees with work authorization be granted drivers’ licenses. The entire cost of issuing drivers’ licenses isn’t covered by the fees charged to those obtaining the licenses, so the expense results in harm to the state, Texas maintained.

Justice Samuel Alito Jr., for one, seemed convinced by Texas’ argument, saying that unless there were some way Texas could not give driver’s licenses to the beneficiaries of DAPA, “I don’t see how there is not injury in fact.”

And Roberts sounded sympathetic to Texas as well when he said, “Their argument is, ‘We’re going to give driver’s licenses to people subject to deferred action.’ And you’re saying, ‘OK, that’s your injury? You can take that away.’ And I just think that’s a real catch-22. If you’re injured, you have standing. But you’re not injured because you can change your policy and not give driver’s licenses to these people.” Then, using a pre-emption argument, the United States would sue if the state denied driver’s licenses, Roberts said.

“We might think it’s pre-empted, but it’s up to the judiciary ultimately to decide whether it’s pre-empted,” Verrilli responded.

Roberts later summarized, “Texas says, ‘Our injury is we have to give driver’s licenses here, and that costs us money.’ And your answer is, ‘Well, maybe you don’t have to give driver’s licenses. Go change the policy.’ ”

Suzan Kern, an attorney with Hunton & Williams in Washington, D.C., said it was still possible the court would find that Texas had standing and could wind up in a 4-4 split over whether the programs violate the Administrative Procedure Act or Article II of the Constitution’s Take Care Clause. If there were a tie vote, the lower court’s decision would remain in place, and DAPA and expanded DACA would remain blocked, as they have been since Texas and 25 other states sued the federal government.

Programs Revived If Texas Lacks Standing

But if Texas is found to lack standing and the programs are upheld as lawful, the injunction will be lifted and the programs can move forward.

Under DAPA, undocumented parents of U.S. citizens and legal permanent residents can legally work for up to three years, if they have lived in the United States for at least five years, starting Jan. 1, 2010.

The expanded DACA program was revised to provide three years of deportation relief and work eligibility instead of two, and the eligibility cutoff date was moved from June 15, 2007, to Jan. 1, 2010.

A grant of deferral would not be lawful status, Kern explained. Lawful status leads to other benefits, such as a green card, citizenship and the ability to sponsor family members. Instead, deferral permits individuals to stay in the country, which is referred to as “lawful presence.”

Lawful presence has other benefits, though, such as the ability to apply for worker permits, driver’s licenses and Social Security.

“If DAPA is allowed to move forward, HR professionals need to know what documents are acceptable for I-9 purposes, as well as what to do if existing employees come forward and announce they are applying or have received DAPA,” noted Justin Storch, manager of agency liaison at the Council for Global Immigration (CFGI), an affiliate of the Society for Human Resource Management.


“While no one can predict how the Supreme Court will rule and many believe it will be a split decision leaving the lower court decision against the president’s policy in place, if the injunction is lifted and the president is given the green light to move ahead and issue work authorizations, there could be future processing delays for those waiting in the queue,” said Rebecca K. Peters, director of government affairs for CFGI. 

“These delays could happen in any legal immigrant or temporary visa categories given a lack of lead time to hire and train personnel at the agency and given that access to filing fees would only happen after people apply,” she added.

This case is United States v. Texas, No. 15-674.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


Job Finder

Find an HR Job Near You
Post a Job


Join us for the largest and best HR conference in the world, June 23-26, 2019 in Las Vegas.



Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 10,000 companies

Search & Connect