Texas v. U.S. – Breakthrough for Immigration?

The landmark Texas v. US case may soon be up for a review by the Supreme Court, thanks to a coalition of 224 immigration, civil rights, labor, and social service groups that has filed an amicus brief.

The brief urges the U.S. Supreme Court to re-examine the landmark case which is responsible for blocking some of President Obama’s executive actions on immigration.

On November 9, 2015, the Fifth Circuit Court of Appeals avowed the order of a Texas federal district court that has blocked the implementation of Deferred Action for Parents of Americans (DAPA) and Lawful Permanent Residents and expanded Deferred Action for Childhood Arrivals (DACA). The court in Texas issued its order in February this year, after President Obama announced the DAPA and expanded DACA initiatives in November 2014.

Together, the programs would allow millions of unregistered people to stay in the United States without the fear of deportation and apply for work permits for a period of three years, with scope for further renewal.

The said amicus brief provides personal stories and testimonials of potential beneficiaries of DAPA and expanded DACA, and talks about how these overdue initiatives would have positive bearings on millions of U.S. citizens and lawful residents.

The filing of this brief follows closely on the heels of the U.S. Court of Appeals for the Fifth Circuit, known as the petition for writ of certiorari, which has affected the lives of millions of immigrants and their families across the country.

This could mean that both initiatives remain blocked. However, it also implies that the federal government can now ask the U.S. Supreme Court to reconsider the case.

A little prior to the rolling out of DAPA and expanded DACA, 26 states (including Texas) sued the Obama administration claiming that the programs exceeded the president’s constitutional authority.

In February, however, a federal judge stayed the said programs, which set into motion a never-ending battle of appeals, leaving potential beneficiaries in a limbo.

The Obama administration has always insisted that the proposed immigration plan is in keeping with its constitutional sanctions, and in accordance with the deportation deferrals other presidents have granted in the past.

What Now?

The federal government can proceed to request the U.S. Supreme Court to review the case. The United States Department of Justice (DOJ) or the Justice Department has already made clear its plan to do so.

Quick action on the part of the federal government and the Supreme Court will mean that the latter could rule as early as the end of June 2016 on whether or not to lift the order meted out by the Texas court.

The Fifth Circuit panel comprised a three-judge panel, which included Judges Smith, Elrod and King. While the first two (who made the majority) were in favor of the court’s order, Judge King wanted to upend it. Judge Caroline D. King wrote a strong dissent explaining why the order blocking the president’s immigration initiatives is legally unstable and needs to be lifted.

In her dissent, Judge King wrote off the majority’s opinion as a “mistake” that “has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal.” Other prominent aspects of her opinion included:

  • Deferred action decisions, which are made on a case-by-case basis pursuant to the proposed initiatives, are “quintessential exercises of prosecutorial discretion.” Because federal courts cannot review matters involving prosecutorial discretion, the case should be dismissed.
  • The majority’s “breathtaking expansion of state standing” would allow potentially limitless state intrusion into federal policy making.
  • The memorandum announcing DAPA and expanded DACA is “a general statement of policy” and thus exempt from notice-and-comment rulemaking under the APA.
  • DAPA does not violate any provision of the Immigration and Nationality Act and “appears to further DHS’s mission of ‘[e]stablishing national immigration enforcement policies and priorities.’”

This dissent points out why Judge King advocates that the Texas court’s order be lifted and explains why she finds that DAPA and expanded DACA are proper programs facilitated on the lines of the federal government’s prosecutorial discretion.

The other two judges, in an unusual step, praised the dissent that emphatically criticized their stand on the matter. “Our dedicated colleague has penned a careful dissent, with which we largely but respectfully disagree,” they said. “It is well-researched, however, and bears a careful read.”

She did not respond to their comments and simply stated, “I have a firm and definite conviction that a mistake has been made,” King concluded.

Implication of the Decision

Currently, the DAPA and expanded DACA initiatives are on hold with the Texas court order blocking both programs from being implemented.

For now, the original DACA program created in 2012 continues to be in effect. Those eligible for deferred action under the program can apply for it. The federal government’s new ‘immigration enforcement priorities’ can continue to be implemented, as announced in November 2014.

In case the Supreme Court declines to hear the case, the lower court’s preliminary injunction would be applicable until the case’s final decree, which could come under a new president.

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