Potential Outcomes After Supreme Court Oral Argument on DAPA: The Good, The Bad, and The Ugly
What’s at Stake?
On Monday, April 18, the United States Supreme Court heard oral argument in United States v. Texas, the case which will decide whether the Deferred Action for Parental Accountability (DAPA) and the expansions of the Deferred Action for Childhood Arrivals (DACA) program. Currently, a decision of the Fifth Circuit Court of Appeals has blocked the implementation of these programs which were first announced in November of 2014. The earlier version of the DACA program, announced in 2012, has not been blocked and remains in operation.
DAPA would allow a grant of deferred action and a work permit for parents of U.S. citizens or lawful permanent residents if they (1) have resided in the U.S. since at least January 1, 2010; (2) have a U.S. citizen or lawful permanent resident son or daughter; and (3) do not have disqualifying crimes and are not otherwise high enforcement priorities.
Expanded DACA would allow a grant of deferred action and a work permit for applicants if they (1) entered the U.S. before turning 16, (2) have resided in the U.S. since at least January 1, 2010, (3) graduated from high school or obtained a GED, or are actively pursuing their high school education or its equivalent in school, (4) have not had any disqualifying criminal offense.
How did Oral Argument Go?
Initial reports from inside the Court indicate that Justice Kennedy and Chief Justice Roberts, both of whom DAPA advocates had targeted as potential votes, asked sharp questions and expressed skepticism about the President’s authority to implement these programs. While Justice Kennedy seemed unconvinced about the authority for the deferred action programs, he also suggested to the lawyer for the House of Representatives that the states should have challenged a decades-old regulation allowing work permits for people with deferred action rather than the DAPA program itself. The four liberal justices, as expected, seemed inclined to rule the programs were legal and cited to similar programs used by past presidents. One plausible outcome, then, would be Justice Kennedy joining with the four liberal justices to find that the states’ concerns are not redressable in this lawsuit—in other words, that what they really don’t like is the work permits and if they don’t like the work permits, they should have challenged the old regulation which allows them.
That said, predictions on how a case will ultimately be decided from what happens at oral argument are notoriously unreliable. So we are left waiting until a decision is released, likely in late June or early July.
What are potential outcomes?
The Good: The Court could rule either that the states did not have standing to bring this lawsuit or that the President acted within his authority in implementing the discretionary programs. Either rationale would overrule the lower court’s decision and allow the DAPA and expanded DACA programs to proceed. We would expect that the Department of Homeland Security will move quickly to release application forms and begin accepting applications so that it could process the first batch before the end of President Obama’s term in January, 2017. Whether the program would continue after January of 2017 would be a decision for the incoming president.
The Bad: The Court could vote to uphold the lower court’s decision. This outcome is seen as the least likely because it is widely expected that at least four of the justices will be inclined to vote in favor of DAPA. If the Court did uphold the lower court’s decision, it would result in a precedent decision which would preclude DAPA and similar programs. Depending on how the decision is written, it could also jeopardize the 2012 version of DACA.
The Ugly (but not necessarily fatal in the long term?): The Court could be deadlocked at 4-4. If this is the case, then there is no precedent decision and the lower court’s ruling which blocked the program remains in force. This means that the program would not be implemented in the short term. However, it is important to note if the next President wanted to continue with this program or something similar, it is very likely that DAPA would be implemented in the coming years. First, states or other parties supportive of DAPA would bring lawsuits in different circuits (or the new President could implement a new very similar program which is not subject to the injunction and force opponents to seek another injunction). Those cases would be appealed up to the Supreme Court again. In the meantime, the new President would have nominated a ninth justice to the Supreme Court. Presumably, that justice would be inclined to vote in favor of the legality of the program. Therefore, when the new lawsuits got to the Supreme Court, the program would win on a 5-4 vote and would be implemented. On the other hand, if the next President is not a supporter of DAPA, the program would be dead following the 4-4 decision. The bottom line is that if the Court deadlocks at 4-4, the long term fate of the program long term will depend on the presidential election.