Supreme Court Deadlocks on DACA and DAPA


Today the Supreme Court of the United States dealt a strong blow to President Barack Obama’s executive actions on immigration issuing a single one-line decision on the ruling “the judgment of the lower court is affirmed by an equally divided court.” Nearly two years ago, President Obama announced a series of executive actions on immigration after the Republican controlled House of Representatives refused to tackle the issue of comprehensive immigration reform. As part of his executive actions on immigration, President Obama announced the expansion of the Deferred Action for Childhood Arrivals (DACA) program, and introduced a new program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, (DAPA) designed to shield nearly five million undocumented immigrants from deportation. Following these initiatives, USCIS announced that applications for expanded DACA and the new DAPA program would begin to be accepted on February 18, 2015.

The DACA program would have expanded the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. The new DAPA program would have granted parents of U.S. Citizens and lawful permanent residents the opportunity to request deferred action and employment authorization for a three year period, on the condition that they have lived in the United States continuously since January 1, 2010 and pass required background checks.

On February 16, 2015 just two days before the programs were scheduled to go into effect, Texas along with 25 other states, filed a temporary court injunction ultimately suspending both programs from going into effect. This action prompted the Obama administration to intervene. For months, the federal government and the State of Texas battled one another in federal court. The court ultimately determined that Texas and at least 25 other status had sufficient ‘standing’ to challenge these programs. In response, the federal government filed an emergency motion to stay, however the motion was eventually denied by the court. This led the government to file a writ of certiorari before the Supreme Court. The fate of Obama’s executive actions grew all the more uncertain with the sudden death of conservative Supreme Court Justice Antonin Scalia on February 13th.  President Obama made desperate attempts to fill the vacated seat by nominating Merrick Garland to the Supreme Court, the Chief Judge of the United States Court of Appeals for the District of Columbia. Efforts to fill the seat were unsuccessful as Republicans vowed to keep Garland from sitting on the bench. Thus, Scalia’s death left behind an eight-person bench, and with no one to fill his seat, the growing possibility of a deadlock within the Supreme Court.

Today the 4-4 tie signaled that the Supreme Court could not come to a decision on the legality of President Obama’s expanded DACA and DAPA programs. The deadlock will mean that the lower court injunction will remain in place, blocking these initiatives from being implemented. The case will be going back to Texas and await its fate in the lower court. If passed, these initiatives would have given employment authorization to nearly four million eligible immigrants living in the United States illegally, and shielded these individuals from deportation. Although the votes of each Supreme Court justice have not yet been revealed, during oral arguments the justices appeared to be split along clear ideological lines. The Supreme Court’s decision will mean that the future of immigration policy will be largely determined by Obama’s successor who will also have the opportunity to nominate a Supreme Court justice to fill Scalia’s vacant seat.

Obama publicly appeared responding to the ruling as follows, “now, as disappointing as it was to be challenged for taking the kind of actions that other administrations have taken, the county was looking to the Supreme Court to resolve the important legal questions raised in this case. Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court. It means that the expanded set of common-sense deferred action policies –the ones that I announced two years ago – can’t go forward at this stage, until there is a ninth justice on the Court to break the tie…..the deferred action policy that has been in place for the last four years is not affected by this ruling. Enforcement priorities developed by my administration are not affected by this ruling. This means that the people who might have benefited from the expanded deferred action policies—long-term residents raising children who are Americans or legal residents—they will remain low priorities for enforcement. As long as you have not committed a crime, our limited immigration enforcement resources are not focused on you.”

Please note that the initial DACA program is unaffected by the ruling. Initial DACA applications will continue to be accepted for two-year employment authorization.

Timeline of legal action between the federal government and plaintiffs:

  • November 20, 2014 President Barack Obama addresses the nation, introducing the extended DACA program and new DAPA program as part of his executive actions on immigration. Applicants begin to prepare for their DACA/DAPA petitions to be accepted by USCIS beginning February 18, 2015;
  • February 15, 2015 a temporary injunction filed by Judge Hanen along with 26 states puts the extended DACA program and DAPA program on hold, 3 days prior to the enforcement of these programs;
  • March 12, 2015 The Department of Justice responds by filing an appeal defending extended DACA and DAPA and an emergency motion to stay with the 5th Circuit Court of Appeals, allowing the programs to continue as planned;
  • November 9, 2015 the Fifth Circuit Court of Appeals denies the federal government’s emergency motion to stay. The injunction continues in place until a decision is reached by the court;
  • November 20, 2015 the federal government files a Writ of Certiorari for United States v. Texas to be heard before the Supreme Court;
  • January 19, 2016 Writ of Certiorari granted by the Supreme Court;
  • April 18, 2016 Arguments to begin in the Supreme Court case United States v. Texas;
  • June 23, 2016 the Supreme Court announces that the justices were equally split, sending the case back to the lower court;

For more information please continue to follow our blog for more updates. For information about the initial DACA program please contact us.