Published January 25, 2016


Last week, the U.S. Supreme Court announced it will consider the Obama administration’s appeal in the United States v. Texas and hear oral arguments on the legality of President Obama’s executive order granting, in effect, temporary immigration status to millions of undocumented immigrants.   Oral arguments on the legality of this program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA”, are slated for April, 2016 and with a final decision expected by the end of June.  

At issue before the court are a number of important legal and constitutional principles, principles that are bigger than this particular legalization program.   Does a state, such as Texas or the 24 other states that part of this class action lawsuit, have “standing” as an eligible plaintiff, to legally challenge a Presidential order?   Did President Obama violate the U.S. constitution’s “separation of powers” clause, by issuing an executive order that implements far reaching policies that are more properly the business of our legislative branch?  Did the President violate a constitutional clause requiring him to “Take Care That the Laws be Faithfully Executed”?   Did the Obama Administration violate a federal law dictating how and when an executive branch agency, such as Department of Homeland Security in this case, are supposed to announce and implement a far reaching policy program such as DAPA.

If allowed to stand,  DAPA will prevent the deportation of up to 5 million qualifying undocumented individuals, and allow each to be issued employment authorization (Importantly, though, the vast majority of these 5 million or overall, the total undocumented population of 12 million have not previously been threatened with deportation, notwithstanding their lack of legal status).  More specifically, eligibility for DAPA benefits depends on the applicant proving they A) arrived in the U.S. on or before January 1, 2010, B) lived here continuously through November 20, 2014, C) paid taxes on earned income, D) have not been convicted of any significant criminal offense AND E) are the parent of a U.S. citizen or lawful permanent resident. 

DAPA is a program almost identical to the Deferred Action for Childhood Arrivals program or “DACA”, implemented by the Obama administration in August 2012, where approximately 500,000 undocumented children and young adults were able to obtain employment authorization and reside in the U.S. without fear of deportation.

The timing of the Supreme Court decision is crucial.  If DAPA is upheld, the Obama administration should have enough time to implement the program and accomplish its goals.  However, like DACA, the DAPA program is not a congressionally passed law.  That means a new Presidential administration, such as the one taking office in January of 2017, has the power to reverse course and eventually eliminate such an executive program.

No, the Supreme Court’s action in U.S. v. Texas will not decide the ultimate fate of our undocumented population.   For certain, each of the 12 million residing here continue to have the right to “due process” under the law and to defend against removal proceedings should they need to.    No matter what happens though, do not count on the political rhetoric to quiet down on the immigration issue, especially as we get closer to our November presidential election.



PUBLISHED January 25, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois