SCOTUS decision on DACA, DAPA immigration programs expected soon

On Monday, April 18, the U.S. Supreme Court finally heard oral arguments on United States v. Texas, the case involving President Obama’s executive orders protecting non-criminal undocumented immigrants from deportation. Two issues are in contention with the Obama policies: the expansion of the already-existing Deferred Action for Childhood Arrivals (DACA) and the creation of the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

Implementation of the expanded DACA and DAPA programs could not be carried out after twenty-six mostly Republican state attorneys general filed suit in federal court. They alleged that the federal executive had no right to extend such protections to the undocumented because it would force state governments to pay extra costs for such immigrants. A conservative federal district court judge in Texas, Andrew Hanan, ordered the suspension of the implementation of the executive orders on February 18, 2015. The Obama Administration has appealed, and this is the case that the Supreme Court has now taken up.

It is already boosting voter registration in Latino communities and promises to be an important factor in the November elections.

DACA and DAPA: Bringing millions out of the shadows

The original DACA program, announced by Obama in 2012, defers deportation of people who were brought into the United States without papers when they were minor children and allows them to get work permits. An expanded DACA and the new DAPA program were announced by Obama on November 20, 2014. The expanded DACA eliminates the original’s age eligibility cutoff date of 31, allowing more people brought here as minor children to apply. DAPA defers deportation for the parents of U.S. citizens and legal permanent residents in this country. Applicants for this program are required to have been in this country continuously since January 1, 2010. 

The joint beneficial impact of original DACA, expanded DACA, and DAPA would be to permit at least five million people to live and work in this country for three years (renewable) without fear of deportation. They would be eligible to receive Social Security numbers and be allowed to travel outside the United States under certain circumstances – an important need for immigrants with families in their countries of origin.

Not all undocumented immigrants would be covered by the programs, but as there are between 10.5 and 11 million undocumented people in the country, DACA and DAPA might halve the number who are currently forced to “live in the shadows.”

Many undocumented workers live in mixed households which include permanent legal residents and U.S. citizens. Thus the constant fear of arrest and deportation affects several times more people than are actually in the United States without papers. Undocumented people have to worry about being stopped by a police officer for a broken tail light, or simply for “driving while Latino,” and other offenses. In such situations, the undocumented and their families face the possibility of being turned over to immigration authorities.

This, in turn, could set off a cascade of consequences: the splitting of the family; the loss of the breadwinner through deportation; the resulting foreclosure because the breadwinner is no longer there to make payments on the house; eviction from the apartment and being forced to move into much worse living conditions; disruption of the children’s school and social life; and many other bad things.

The fear of deportation also leads undocumented workers to feel forced to accept sub-minimum wages and dangerous conditions at work, which negatively affects not only the undocumented but all other workers as well. So President Obama, whose administration had been previously criticized for carrying out large numbers of deportations, has been widely praised for DACA and DAPA in Latino and immigrant communities in the United States.

GOP blocks implementation

As mentioned, implementation of the programs were blocked by the lawsuit of twenty-six mostly GOP state attorneys general who sought to stop Obama’s extensions (but not the original DACA). The argument of the attorneys general, supported by the Republican-dominated U.S. House of Representatives and anti-immigrant groups, is that in Texas the state government subsidizes drivers’ licenses and therefore would be fiscally affected by having to administer the granting of licenses to persons who benefit from an expanded DACA and DAPA.

The legal importance of this is that the claim Texas would incur such a cost could be seen as giving the state “standing” in court, and thus, the right to sue.  Not just anybody can drag a case into court for any reason; one has to prove that they have a real interest in the case to be decided.

Ignored is the fact that studies show that when undocumented immigrants get the legal ability to work, their incomes go up and so do the taxes they pay at all levels. So in all probability, Texas and the other states would actually benefit financially from the expanded DACA and DAPA programs. The federal government, however, chose to argue that the state of Texas had decided on its own responsibility to subsidize drivers’ license costs, and could cease to do so if it chose.

Beyond the issue of “standing” of the original plaintiffs, there is the substantive question of whether the federal executive has the right to use executive orders to protect whole classes of people against deportation, and to give them permission to work in this country. The government points out that many other presidents, including Republican ones, have done this without anybody objecting.

For example, after the Cuban Revolution of January 1, 1959, regular immigration laws were suspended for many thousands of Cubans who came to the U.S. claiming to be fleeing Fidel Castro’s government, and these people were subsequently given legal permanent residence. There are several other examples. Besides, the Obama Administration argues, there is no possibility that the government could track down, arrest, and deport 11 million people. It simply does no have the resources and mechanisms to do so.

What to expect

Things looked bleak for the Obama Administration’s case, in spite of the fact that large numbers of law professors and other experts said it was solid, simply because of the degree to which partisan politics have invaded the Supreme Court’s deliberations this election season. It was thought by people following the case that Justices Ginsburg, Breyer, Sotomayor, and Kagan would probably support the government’s position and let the implementation of extended DACA and DAPA proceed. But it seemed certain that Justices Scalia, Alito, and Thomas would rule in favor of the state attorneys general. That meant that everything would hinge on the attitudes of Justice Kennedy and Chief Justice Roberts. Kennedy has sometimes been a swing vote, and Roberts, though generally right-wing, has on occasion supported administration claims of authority on other issues – including the legality of Obamacare – which has led some Tea Party enthusiasts to regard him as a traitor to the right.  

Since that case also had to do with the extent of the executive branch’s discretionary powers, it was thought that perhaps Roberts would turn out to be willing to side with the government on DACA-DAPA as well.

With the death of Scalia, however, chances for an Obama Administration victory appeared to improve.  The worst case scenario now appeared to be a 4-4 split on the Court, which would leave the original order by the federal judge in Texas standing. It would not settle the case permanently, however, setting no precedent. The blocking of President Obama’s nomination of Merrick Garland to replace Scalia on the Court would mean that immigrants and their families would continue to be stuck in their present situation until at least after the November elections, and maybe beyond.

However, this past week’s back and forth among the eight remaining justices, the Obama Administration (represented by U.S. Solicitor General Donald Verilli), and the legal representatives of the state attorneys general were somewhat discouraging to supporters of expanded immigrants’ rights. Both Roberts and Kennedy seemed to question the government’s positions, with Roberts suggesting that if Texas were to stop subsidizing drivers’ licenses, the U.S. would sue the state for violation of the immigrants’ civil rights. Kennedy, for his part, appeared to be confused about the authority of the federal government to give people temporary legal permission to be in the country. But then again, it is possible that Kennedy and Roberts were just doing “due diligence” in exploring all sides of the case.

Experts on Supreme Court procedures are saying that a conclusion was probably reached on Friday April 22. If that is indeed the case, the documents of the case are being prepared by the justices and their staffs. The decision could be announced as early as mid May, but perhaps not until late June. Meanwhile, tens of millions of immigrants and their family members continue the agonizing wait.

Latino voters mobilizing for November 

But the rigid position taken by the Republican politicians on this case is helping to motivate Latino voters to register in possibly record numbers for the November elections. Both of the leading Republican presidential candidates, Donald Trump and Ted Cruz, have said they will undertake mass deportations of undocumented immigrants if they are elected.

Trump has threatened to build a wall on the U.S.-Mexico border to keep Mexicans out and to “make Mexico pay for it.” Questioned as to how he could force Mexico to pay, Trump says he will seize the money that undocumented immigrants scrape together to send to their impoverished relatives in Mexico. These “remittances” amount to some $22 billion every year (though not all of it comes from undocumented immigrants), so this would severely shock the Mexican economy (which Trump forgets is a major U.S. trading partner). Further, Trump and Cruz both claim they will end birthright citizenship for children born in the United States to undocumented immigrants, which is guaranteed by the 14th Amendment to the U.S. Constitution. Kasich says he would be in favor of giving legal status to some undocumented immigrants, but he would bar eventual U.S. citizenship.

Both the remaining Democratic Party presidential candidates, Senator Bernie Sanders and former Secretary of State Hillary Clinton, have taken pro-immigrant positions. They not only support expanded DACA and DAPA, but also comprehensive immigration reform including full legalization of non-criminal undocumented immigrants with a path to citizenship. They have both committed to expanding the two Obama Administration programs, DACA and DAPA, to cover many more people, including the parents of people in the DACA program.

U.S. v. Texas promises to be an important factor in the run-up to the November vote then, no matter how the Supreme Court decides the case.

Photo: AP


Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.