On April 18th, the U.S. Supreme Court heard oral arguments on the matter of Texas v. United States. This is the legal action in which Texas and 25 other states joined to challenge President Obama’s executive order known as DAPA (Deferred Action for Parents of Americans). DAPA would stop the deportation of people in the U.S. without legal authorization and who arrived here prior to 2010, have no criminal convictions, and are parents of children who are either American citizens or permanent residents. 

Although DAPA would not confer legal status to the people who meet these requirements, it would allow them to live and work legally in the U.S. This would allow them to “come out of the shadows” and to become productive tax paying members of society. 

Texas and its companion states argued that they have a right to challenge DAPA, because DAPA would cost the states money, since, for example, Texas subsidizes the cost of issuing drivers’ licenses.  They also argued that the President exceeded his executive authority with DAPA, because the large number of people that would be protected represents a substantial change in the law.  The states also complained that the President issued the order without giving them notice and an opportunity to make comments.  Further, they argued that the President is obliged to carry out laws and lacks the power to change them; only Congress may change laws.

The Obama Administration argued that it is within the President’s authority to prioritize who should be deported from the U.S.  President Obama argued that the millions of people who meet the DAPA criteria are not threats to the security of the U.S. and that resources should be spent on deporting only those who pose a threat, such as those with a criminal background.  President Obama pointed out that he is not the first president to choose who to deport and not to deport.  In fact, some critics of President Obama have pointed out that the Obama Administration has deported more people than any other administration.

Texas and the other states challenged the Obama Administration in the federal district court in Texas and was granted a restraining order against implementing DAPA. The Obama Administration appealed the restraining order to the Fifth Circuit Court of Appeals, where it requested that the restraining order be lifted. The Fifth Circuit Court refused to remove the restraining order. The Obama Administration then appealed to the U.S. Supreme Court for a decision on DAPA.

The Supreme Court is expected to decide this case by the end of its current term, which is on June 30th.  The Court is currently down to eight members from its usual nine due to the recent death of Justice Antonin Scalia.  Many experienced observers of the Court are of the opinion that the Justices are evenly divided on the issues presented by this case based in part on their comments during the oral argument.  If the Court decides this matter with four in favor and four against, the decision of the lower court will remain in effect. This will result in the federal district court decision against DAPA being the final word on this matter.

If the Court decides in favor of the Obama Administration, the Court will likely remand the case back to the district court with instructions to vacate its restraining order, which will allow DAPA to proceed. However, the next president may decide to abandon DAPA, since DAPA is an executive order. This would be likely if a Republican wins in November. However, if a Democrat wins, it is likely that DAPA would remain in effect.