On November 20, 2015, exactly one year after President Obama announced the DAPA program, the U.S. Department of Justice filed a request to the U.S. Supreme Court, asking the court to review the 5th Circuit’s decision to allow the continued blockage of the program.
In the request to the Supreme Court, the Administration makes 3 challenges to the lawsuit. First, the Administration asks whether the states that brought the lawsuit against DAPA even have a legal right to file such a claim, referred to as “standing.” Second, they ask if the DAPA program violates any law. Third, the Administration asks whether DAPA must first go through a long and cumbersome procedure of comments from the public before the program can begin. The Administration argues that the answer to all 3 of these questions is “No.”
With hopes that the Supreme Court will agree to hear this case during the current term, which ends in June 2016, the Administration states that this case deserves immediate review, in light of the great importance of DAPA to “millions of families with longstanding and close connections to this country.”
Regarding the issue of standing, states and individuals generally lack standing to challenge the choices that a presidential administration makes about how to enforce the laws of the United States. One of the requirements for a state to obtain standing is to show that the state will suffer if DAPA is implemented. The 5th Circuit, in blocking DAPA, concluded that the state of Texas had standing to sue because Texas has made the decision to subsidize the costs of issuing driver licenses to persons who would obtain DAPA. The 5th Circuit conceded that Texas could simply charge a higher fee for the driver licenses so that Texas would not need to subsidize the driver licenses at all. Yet the 5th Circuit concluded that DAPA imposed “pressure” on Texas to change its laws.
We will be watching this case closely. It will be interesting to see if the Supreme Court takes this case for the current term, or if the Court defers the case to the following term.