In an earlier post, I had noted that the Obama Administration asked the Supreme Court to agree to consider the case regarding DAPA – President Obama’s plan to provide temporary relief to parents of U.S. citizens and permanent residents.
Today, the Supreme Court denied the request for rehearing. The Supreme Court did not provide any explanation for the denial.
At this time, the DAPA case, United States v. Texas, remains in the lower courts. The future of the case is uncertain at this time.
The Solicitor General’s Office – the part of the U.S. Department of Justice that handles litigation at the Supreme Court – has filed a petition for rehearing of the DAPA case. The request is for the Supreme Court to rehear the DAPA case after a ninth justice has been appointed to the Court.
The Solicitor General’s petition acknowledges that it is “exceedingly rare” for the Supreme Court to grant rehearing, but that the Court has done so in the past after being deadlocked as a result of a vacancy on the Court, as in this case.
Whether or not the Supreme Court grants rehearing, it is possible that this case could go before the Supreme Court in the future, because if the Supreme Court does not grant rehearing, then the case could continue in the federal district court in South Texas, and then again at the U.S. Court of Appeals for the Fifth Circuit, and then eventually at the Supreme Court.
After the U.S. Supreme Court issued its non-decision in the DAPA case, essentially stating that the lower court’s ruling remains in effect, the DAPA case continues as if the Supreme Court had never accepted the case in the first place.
The case is in the early stages. It will now return to the U.S. District Court in south Texas, presumably to continue the process of determining whether President Obama’s plan to provide temporary relief from removal to parents of U.S. citizens, and to expand DACA (“DACA 2.0”), is valid or not.
One thing is clear. The original DACA program remains valid. You might be eligible to apply for Deferred Action for Childhood Arrivals (DACA) if:
- You were born after June 15, 1981;
- You came to the United States before reaching your 16th birthday;
- You have continuously resided in the United States since June 15, 2007, up to the present time;
- You were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- You entered the United States without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- You are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
- You have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
But the future of DAPA and DACA 2.0 is uncertain. Because the Supreme Court did not decide the issue, the case is now back at the federal district court in south Texas. The case will probably remain pending for many months, and will likely not be decided before the inauguration of the next President of the United States. The next President could decide to continue to try to move forward with DAPA and DACA 2.0, or to terminate the program.
For now, one thing is clear, at least until the inauguration of the next President: The original DACA program is still in effect.
Today the Supreme Court announced that it will hear oral arguments in United States v. Texas on Monday, April 18, 2016. The vacant seat left by the death of Justice Scalia will not be filled by that date. As a result, the remaining 8 justices will consider the case.
The DAPA case is the only case scheduled for oral argument on April 18. The Court might decide to extend the length of arguments for each side, beyond the typical 30 minutes.
It is expected that the Court will issue a decision in the case by the end of June 2016.
Notably, the Court postponed several other cases until the Court’s next term that begins October 2016. So, it appears that the Court cosiders DAPA important enough to consider during this term, even with the vacancy on the Court.
After the unexpected death of Justice Scalia, leaving the Supreme Court with 8 justices, at least for now, there are many things left up in the air. The Supreme Court is in the middle of a term, President Obama will nominate a new justice, and the Senate will either hold nomination hearings and take a vote on the nominee, or will simply refuse to hold a vote. Although many GOP Senators have been stating they will not hold a vote, at least one, Senator Charles Grassley, chair of the Senate Judiciary Committee, indicated he hasn’t made up his mind yet about whether to hold hearings on the nominee.
If the Senate confirms Mr. Obama’s nomination before the Supreme Court takes up the DAPA case – United States v. Texas, then it appears that DAPA would have a good chance of being able to move forward, because it would be likely that a majority of justices would conclude that DAPA is in accord with the Constitution and laws.
Realistically, it is not likely at all that the new justice would be on the Court to hear the DAPA case this term, which ends in June.
The justices could decide to postpone hearing the case until the next term, which begins in October 2016, and which might end up being too late for implementation of the program before President Obama leaves office on January 20, 2017.
If the 8 sitting justices decide to hear the case this term, then we could guess that there is a good possibility that Justices Ginsburg, Breyer, Sotomayor, and Kagan would likely rule in favor of the legality of the DAPA program. And, there is probably a good possibility that Justices Thomas and Alito would likely rule against DAPA. That leaves us with Chief Justice Roberts and Justice Kennedy. Either or both of those justices could joint the other justices in favor of DAPA, perhaps on the legal argument that the states lack standing to bring the DAPA lawsuit in the first place. If either Chief Justice Roberts or Justice Kennedy join the other 4, a majority would be in place to potentially allow the DAPA program to move forward.
The death of Supreme Court Justice Antonin Scalia adds uncertainty to the pending case before the Court regarding the legality of President Obama’s DAPA program.
The case, United States v. Texas, is scheduled on the Supreme Court’s current docket. Of course, it’s uncertain how each individual justice will vote in the case, but it’s fair to guess that Justice Scalia might have concluded that the DAPA program is unconstitutional or otherwise in violation of the law.
President Obama has indicated that he plans to nominate a person to fill the vacancy on the Supreme Court. So far, Republican Senate leaders have indicated that they plan to block or otherwise thwart President Obama’s efforts to fill the vacancy before he leaves office on January 20, 2017.
If the DAPA case is heard by the current 8 justices on the Supreme Court, there is the possibility that the justices could split 4-4 on the legality of the program. A 4-4 split would leave the lower court’s ruling intact. In that scenario, DAPA would not be able to be implemented.
It’s possible, although unlikely, that the Senate would confirm President Obama’s nominee to the Court by the time the DAPA case is argued.
Another possibility is that the Court would decide to postpone the hearing of the DAPA case until the next term, which begins in October 2016. In that scenario, it is likely that a decision would not be issued in the case in time for President Obama to begin implementation of the DAPA program before he leaves office.
The Supreme Court has agreed to hear the DAPA case. Oral arguments will be scheduled for April 2016. The Court will most likely issue a decision in the case by the end of June 2016.
The Court will be resolving whether the states had a legal right to sue the Obama Administration, or whether the states lacked standing to do so. The Court will also be deciding whether DAPA, and the expansion of DACA, is beyond the President’s powers, and whether the program is unlawful because the President did not include a cumbersome “notice-and-comment” procedure before implementing the program.
Finally, the Court added an additional question that it will answer: whether DAPA and the expansion of DACA violates the Constitutional clause that states that the President must “take care” to faithfully execute the laws passed by Congress.
The U.S. Supreme Court has scheduled a conference of the Justices on January 15, 2016, to consider whether to grant the Obama Administration’s request to review the 5th Circuit’s decision to block the implementation of DAPA. The fact that the Court scheduled the conference for January 15 is good news, because it means that if the Court decides to hear the case, then the Court will most likely issue a decision on the case by June 2016.
As expected, the opponents of DAPA filed an opposition to the Obama Administration’s request. In their brief, the opponents stated that they have standing to file the lawsuit against DAPA, mainly because, they argue, it will cost states additional funds to issue driver licenses to DAPA recipients. The opponents brush aside the response that states have the authority to charge fees to cover the costs of issuing driver licenses.
The opponents go on to state that DAPA is reviewable in the courts, and that the Obama Administration did not go through the cumbersome notice-and-comment procedure before moving forward with DAPA. Finally, the opponents stated their arguments that DAPA violates the U.S. Constitution. They argue that the Obama Administration acted without the consent of Congress, and therefore violated the Separation of Powers – that the President took on the role of Congress without Congress’s authorization.
I expect that the Supreme Court will decide to hear the case. The Court will hear the case if at least 4 of the 9 Justices vote to hear it.
A small bit of good news: The U.S. Supreme Court agreed with the Obama Administration’s suggestion that the opponents of DAPA get only 8 additional days to submit their response to the Administration’s request that the Supreme Court take the case. The opponents had asked for 30 days.
The small extension means that the opponents’ response is due to the Supreme Court by December 29, 2015. That makes it more likely that, if the Supreme Court decides to hear the case, they might hear it and issue a decision by June 2016.
As I stated in a previous post, on November 20, the Obama Administration’s Department of Justice asked the Supreme Court to review the 5th Circuit’s decision to allow the injunction against DAPA to stay in place.
On November 23, the attorney representing the opponents of DAPA asked for a 30-day extension to reply to the Obama Administration’s request. If the Supreme Court grants the extension, then the opponents’ reply would be due on January 20, 2016. That might be too late for the Supreme Court to decide the case by June 2016.
On November 24, the Obama Administration presented an opposition to the request for a 30-day extension, suggesting an 8-day extension instead. If the Supreme Court granted an extension of 8 days, it would make more likely the possibility that the Supreme Court would address the case and issue a decision by June 2016.
The Obama Administration also stated that if the Supreme Court grants the 30-day extension, then the Obama Administration will seek to have the case handled on an expedited basis, which would mean requesting a rare May oral argument, so that the Supreme Court could still issue a decision by June 2016. Usually the Supreme Court completes oral arguments in April, and then prepares and issues all remaining decisions in May and June.
Stay tuned for the Supreme Court’s response to these requests.