In a move that has elicited disappointment from immigration proponents across the country, the Supreme Court failed to render a judgement this week on the controversial U.S. vs. Texas immigration law case. That means that despite the best efforts of the Obama administration and its allies, Texas’s campaign to stall the implementation of DAPA lives on.
If you’ve never heard of DAPA, allow us to back up. In 2012, the Obama administration proposed a program—called the Deferred Action for Parental Accountability, or DAPA–which would grant virtual amnesty to almost 5 million undocumented immigrants living in this country. More than 26 states vowed to stop it, and a complicated legal battle ensued. In 2015, U.S. District Judge Andrew S. Hanen issued a preliminary injunction that temporarily halted DAPA’s implementation in Texas. The case made it all the way to the highest court in the land, and the nation waited for the outcome with baited breath.
Rather than releasing an official concurrence or dissent, however, the Supreme Court only issued a one-line per curium opinion this weekend, which simply stated, “the Judgement is affirmed by an equally divided Court.” This ruling sets up no precedent, and simply leaves in place the lower court’s preliminary injunction.
Effectively, Obama’s administration is now barred from implementing DAPA for the remainder of his presidency. This is a huge victory for Texas and the 26 other states that filed the lawsuit—and a huge blow to the immigrants and allies that had hoped for a different outcome.
Here’s everything you need to know about the case—and what will happen next.
US vs. Texas Background
President Barack Obama has long been a proponent of U.S. immigration law reform. In 2012, at the start of his second term, Obama proposed DACA, or the Deferred Action for Childhood Arrivals initiative. This program would allow immigrants who entered the country before their 16th birthday to be exempt from deportation, and would also give them a two-year work permit. DACA does not provide immigrants with a path to citizenship, but simply confers them with non-immigrant legal status. Since 2014, the USCIS has granted DACA status to over 581,000 people.
Then, in 2014, Obama proposed the DAPA initiative. DAPA (which, again, stands for the Deferred Action for Parents of Americans) was intended to grant deferred action to all immigrants whose children were born within the U.S. The program would essentially keep immigrant parents and children together, removing the fear of separation through deportation. Like their children, immigrant parents would be recognized as lawful permanent residents—not full citizens, but not subject to deportation, either. When combined with DACA, DAPA would have delayed deportation for about half of the 11 million undocumented immigrants living in the U.S.
U.S. South Resists Obama’s Immigration Law
Anyone who pays any attention to American politics already knows what happened next. The American South did not take kindly to Obama, immigrants, or reforms, and within hours of the President’s announcement, his plan was already being challenged in a federal court case. Shortly thereafter, representatives of 17 states filed United States vs. Texas in a Brownsville, Texas federal court, with 9 other states shortly following suit.
After some complicated legal tussling, District Court Judge Andrew S. Hanen in Brownsville, Texas filed a preliminary injunction against DAPA on the grounds that it would create a new class of citizens eligible for state driver’s licenses, which would impose additional processing costs on the state of Texas.
The U.S. government requested that Hanen lift the injunction, and proposed to issue a partial stay that would allow every state except Texas to start implementing the reforms. Hanen denied the request, and argued that President Obama’s program violated the rulemaking requirements of the Administrative Procedure Act. In November 2015, the Justice Department announced that it would ask the Supreme Court to reverse the decision. Due to the death of Justice Antonin Scalia, the case was decided by 8 justices instead of 9. It resulted in a 4-4 draw that meant, essentially, Texas wins. For now.
United States vs. Texas Reaction
After the decision was announced, President Obama immediately held a press conference criticizing it. He blamed “spasms of politics around immigration and fearmongering” for the result—no doubt referring to Presidential candidate Donald Trump’s latest remarks—and criticized Senate Republicans for refusing to consider his nominee for the Supreme Court, Merrick Garland. Former acting Solicitor General Walter Dellinger remarked, “Seldom have the hopes of so many been crushed by so few words.” Texas Attorney General Paxton praised the result, stating, “This is a major setback to President Obama’s attempt to expand Executive Power, and a victory for those who believe in a separation of powers and the rule of law.”
Immigration Law: What Comes Next?
The Supreme Court has decided not to decide anything. So, now what? Now, the case will progress normally through the court system again. It will return to the Southern District of Texas, where the presiding judge will work with the parties to create a schedule of events. There will likely be a summary judgement and a hearing, not a trial, since this is not a case of evaluating someone’s credibility on the witness stand, but a legal dispute over the fundamental question of whether DAPA requires public notice and consent.
The separate parties will make their arguments, and in six months or more, the district court will issue an opinion. The losing party will likely appeal to the Fifth Circuit Court (again) and, upon a second loss, could appeal to the U.S. Supreme Court (again). By that time, there will be a new judge sitting in Antonin Scalia’s chair, and it’s anyone’s guess what the outcome will be.
Though the situation is disappointing, neither is it hopeless. An order striking down DAPA would have been a massive, and perhaps irreparable, blow to American immigration law reform. A tie, however, can be seen as simply a temporary setback.
Now, immigrants, their loved ones, and their advocates simply need to wait patiently for the judicial process to play itself out once again in the months and years ahead, and hope that a celebration will one day be in order.