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A Ray Of Hope—Small, But Significant

Sunrise by the sea


Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

The Administration’s plan to allow millions of undocumented immigrants to live and work in the United States without fear of deportation triggered legal and political debates across the country. Obama’s program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) would allow such undocumented immigrants to apply for work permits if they have lived in the United States for at least five years and have not committed felonies or repeated misdemeanors. The program was announced through an Executive Order slightly over a year ago after House Republicans blocked an effort to pass a comprehensive immigration bill.


The Administration’s Position

The Administration’s position is that the program is simply a form of prioritizing which undocumented immigrants the government will move first to deport and that the President has the authority to allow millions of undocumented immigrants to remain and work in the United States without fear of deportation. However, Texas and other states said the program runs afoul of federal laws and saddles states with providing benefits for millions of people now eligible for work permits and other forms of government aid.


The Lawsuit

Texas and 25 other states, including Florida, sued, saying that Obama had exceeded his authority with a plan that would allow up to five million undocumented immigrants to remain in this country. A federal district court and then a panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans, in a 2-1 decision, agreed. Both actions have thus far kept the program from being implemented.

The Administration contends that the states have no legal standing to sue because it is up to the federal government to set immigration policy and that the Department of Homeland Security did not violate federal statutes in devising the new program. Further, as a practical matter, the Government says it does not have the resources to annually deport more than about 400,000 of the nation’s estimated 11 million illegal aliens.


The Supreme Court’s Ruling

The Supreme Court rejected a request from Texas and other states for a 30-day extension to file legal briefs in support of the lawsuit to block the immigration plan from implementation. If the 30-day extension had been granted, the extension would have made it very unlikely that the Supreme Court could hear the case during its current term.

On December 1, 2015, the Supreme Court presented the Obama Administration a procedural, but critical, immigration victory. The Supreme Court justices accepted the Justice Department’s request for only an eight-day extension. Thus, if the Court decides to take the case, a decision would probably come by late June. In a show of support, more than 200 Democrats in Congress recently asked the Supreme Court to take up the injunction, arguing that the program was well within the President’s authority to implement.


The Hearing Schedule

The Supreme Court is not expected to decide until January whether to take the case.  Generally, the Court must accept a case by January to schedule it for oral arguments and a decision before the Supreme Court’s term ends in June. But experts on the Court note that the justices could also make special accommodations for a case that carries such important questions about federalism and the balance of power between the branches of government. If the Supreme Court accepts the case in January, the decision would come in the midst of a 2016 Presidential campaign and would be further adding to a docket already filled with election year controversies.


What Are the Consequences?

A victory for the government would allow it to start enrolling immigrants in the program before the President leaves office in January 2017—an outcome that the Administration has been seeking with heightened urgency. If the Supreme Court does not agree to consider the issue, and the lower court decision stands, President Obama has little chance of implementing the program before he leaves office in January 2017.


In Closing:  How Much Longer Can We Wait?

America’s immigration system must be fixed so that it meets the needs of families, employers, workers, vulnerable populations and our nation’s economy. How much longer can we wait?

“We are a nation that feels strongly about our families, our community, our country and the plight of others who are less fortunate. Inaction is unacceptable. Meaningful reform will require an unwavering commitment from all involved and unbridled optimism that this is an attainable goal,” said Attorney Linda Osberg-Braun.