Obama asks Supreme Court to review DAPA decision

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.

DAPA – The Race to the Supreme Court

After the 5th Circuit’s delayed decision, issued November 9, 2015, continuing to block DAPA (Deferred Action for Parents of Americans and Permanent Residents), the Obama Administration announced that it will seek Supreme Court review of the decision.  There are at least two important questions at this point:  (1) Will the Supreme Court agree to hear the case?  and (2) If the Supreme Court takes the case, will the Court issue a decision in 2016, or in 2017?

First, in order for the Supreme Court to hear the case, at least 4 out of the 9 justices need to vote in favor of taking the case.  Because of the importance of this case, and because of the legal questions involved, I believe that at least 4 of the 9 justices will agree to hear the case.  I think that the justices most likely to vote in favor of hearing the case are Justices Ginsburg, Breyer, Sotomayor, and Kagan.  I also think there is a good possibility that Justice Kennedy will vote in favor of hearing.

Second, the timing of the process is critical, especially in light of the fact that President Obama will be leaving office on January 20, 2017.  

The Supreme Court’s term begins in October and runs through June.

Once the Obama Administration files the petition asking the Supreme Court to hear the case, then the attorney representing the opponents of DAPA will have 30 days to respond.  They may ask for a 30-day extension of time for their response, and the Supreme Court generally grants such extensions.  After the Supreme Court receives the response, then the justices decide whether to take the case.

Generally, if the Supreme Court makes the decision to hear a case before January 15, then they usually set the case for the current term.  But if they make their decision to hear the case after January 15, then they usually set the case for the following term.

If the Obama Administration submits their petition to the Supreme Court by today, November 13, 2015, then the attorneys representing the opponents would need to respond by December 13.  Assuming that they would seek the 30-day extension, then their response would be due January 13, 2016.  If the Obama Administration submits their petition after today, then it appears that the DAPA opponents would likely be submitting their response after January 15, 2016.  That might result in the case being scheduled for the term that begins October 2016 and goes through June 2017, after President Obama will have already left office.

Obama appeals DAPA ruling to the Supreme Court

Yesterday, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that continues to block President Obama’s Deferred Action for Parents of Americans (DAPA).  Today, the Obama Administration announced that it will appeal the ruling to the U.S. Supreme Court, which could issue a decision by June 2016.

President Obama announced the DAPA program on November 20, 2014, almost one year ago.  The program has been tied up in litigation and has never been implemented.  The program is meant to provide temporary help to undocumented persons who have lived in the United States since January 1, 2010, and who, on November 20, 2014, had a son or daughter who is a U.S. citizen or lawful permanent resident, and who meets certain other eligibility criteria.  For those who are granted DAPA, they would receive an Employment Authorization Document valid for two years, and relief from the prospect of deportation unless they are convicted of crimes.

Yesterday’s decision by the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, was decided by a three-judge panel.  Two judges – Jerry E. Smith and Jennifer Walker Elrod – voted to continue to block DAPA, issuing a 70-page decision, while Judge Carolyn Dineen King disagreed, writing a dissent of 54 pages.  Judge King concluded her dissent by writing, “I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”

I will be closely monitoring the case, and will provide updates as they are available.