Supreme Court May Resuscitate Obama's Immigration Actions

By Allen Smith Jan 20, 2016
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Controversial immigration actions by the president may have a second life.

Immigration law attorneys are hopeful the U.S. Supreme Court will revive President Barack Obama’s immigration actions—protecting millions of undocumented immigrants from deportation and allowing them to hold jobs. The court announced Jan. 19 that it will review a federal appeals court decision that suspended the presidential actions.


On Nov. 20, 2014, President Obama exercised his prosecutorial discretion to give nearly half of the nation’s estimated 12 million undocumented immigrants three years of deportation relief and work authorization. He unveiled the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded the Deferred Action for Childhood Arrivals (DACA) program.

Under DAPA, undocumented parents of U.S. citizens and legal permanent residents could legally work for up to three years, if they had 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.

Texas and 25 other states sued, claiming the president should have followed the Administrative Procedure Act (APA) and issued a rule that underwent a public comment period, and that the actions were unconstitutional.

On Feb. 16, 2015, the U.S. District Court for the Southern District of Texas issued a preliminary injunction barring enforcement of the president’s immigration actions. On May 26, 2015, the 5th U.S. Circuit Court of Appeals upheld the injunction.

How Much Discretion?

In United States v. Texas, No. 15-674, the Supreme Court agreed to review whether Texas was an injured party and thus could bring a cause of action challenging the president’s actions, and whether the president should have followed the APA. The court also will consider whether the actions were constitutional.

Paul Virtue, an attorney with Mayer Brown in Washington, D.C., and former general counsel of the U.S. Immigration and Naturalization Service (a predecessor agency of the U.S. Citizenship and Immigration Services—USCIS), and five other former senior USCIS and U.S. Immigration and Customs Enforcement filed a brief in favor of the Supreme Court’s review. Virtue told SHRM Online that “DAPA and expanded DACA fall right in line with the exercise of prosecutorial discretion” afforded to the president. “There aren’t unlimited resources in enforcement and detention facilities.”

As for employers, they “need predictability in the immigration system,” he said.

Prosecutorial discretion has been “exercised by presidents in the past without dispute,” said Mary Pivec, an attorney with Pivec & Associates PLLC in Arlington, Va. “It’s comparable to parole authority on an ad-hoc basis.”

She added that it made sense to bring undocumented workers “out from the shadows. This was not a permanent, but a temporary fix.”

Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan., said that participants in the DACA and DAPA programs “are not getting legal status.”Instead, participants gain the “opportunity to apply for a work permit.” They are finger-printed and screened for criminal violations. Those with serious criminal violations are ineligible to participate.

Texas Attorney General’s Reaction

Texas Attorney General Ken Paxton wasn’t fazed by the Supreme Court granting review: “In deciding to hear this case, the Supreme Court recognizes the importance of the separation of powers.”

He added, “There are limits to the president’s authority, and those limits enacted by Congress were exceeded when the president unilaterally sought to grant ‘lawful presence’ to more than 4 million unauthorized aliens who are in this country unlawfully. The court should affirm what President Obama said himself on more than 20 occasions: that he cannot unilaterally rewrite congressional laws and circumvent the people’s representatives.”

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

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