VIA Times – July 2016 Issue Vital News, Vibrant Views for Asian Americans in Chicago & Midwest
By: Robert Gard
On November 20 and 21, 2014, President Barack Obama announced a series of administrative reforms of immigration policy, collectively called the Immigration Accountability Executive Action. The centerpiece of these reforms is an expansion of the current Deferred Action for Childhood Arrivals (DACA) initiative and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative for the parents of U.S citizens and lawful permanent residents who meet certain criteria. Together, these initiatives could provide as many as 5 million immigrants with temporary relief from deportation.
Moreover, DAPA and expanded DACA is expected not only to keep families united, but also to increase U.S. gross domestic product, increase tax revenue, and raise wages. Texas and 25 other Republican-led states promptly sued and won an unusually broad nationwide injunction from U.S. District Judge Andrew S. Hanen; a forum shopped and hand-picked federal district judge in Brownsville, Texas. When the Republicans first filed their lawsuit against DAPA and expanded DACA they proclaimed it a grand and noble court battle. “This lawsuit is not about immigration” they claimed in their complaint, “It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.”
After dragging its feet for months, the United States Court of Appeals for the Fifth Circuit upheld Judge Hanen’s order in a 2-to-1 decision last November, barely in time for the administration to get its appeal up to the Supreme Court for argument and decision during the current term.
On April 18, 2016, oral arguments were made before an eight member (since the February 2016 death of Justice Antonin Scalia) U.S. Supreme Court in the “political hot potato” case of United States vs. Texas. The issue in United States vs. Texas is whether the Obama administration has the authority to defer the deportation/ removal of millions of unauthorized immigrants who are parents of American citizens and of children with permanent resident status. On June 23rd, the short-handed (8 Justices) U.S. Supreme Court released its long awaited ruling in the case of United States vs. Texas. The 4 – 4 “tie” decision, in its entirety, consisted of just seven words: “The judgment is affirmed by an equally divided court.”
Seldom have so many hopes been so utterly crushed by so few words. The “tie” decision left standing the previous 2 – 1 decision of a panel of three judges of the U.S. Court of Appeals for the 5th Circuit, which had upheld U.S. District Judge Andrew Hanen’s NATIONWIDE (not limited to the geographical area covered by the 5th circuit or even the 26 states that initiated the action) preliminary injunction against Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and against the related expansion of Deferred Action for Childhood Arrivals (“DACA+”).
Former U.S. Solicitor General Walter Dellinger issued a stinging criticism of the Supreme Court for its 4-4 vote on U.S. v Texas, calling it a ” signal failure of democracy.” He recommends the Department of Justice to take the unusual step of filing a motion asking the court to reconsider the decision when there is a full complement of justices. Dellinger further stated, “This was a case brought before a judge singled out by the challengers because there was no doubt as to his hostility toward current immigration policies. His overreaching nationwide injunction was upheld by two 2–1 panels (with the four judges who sat on the two cases combined splitting 2–2). And now four justices who disagree with four other justices have brought the president’s program down. And because the court lacks a ninth justice, and is evenly divided, we don’t even have the benefit of an opinion explaining this extraordinary result. This decision, or non-decision, represents a signal failure of democracy.”
While it is frustrating that the injunction in United States v. Texas was affirmed without explanation and without any precedential decision, however, this does have the benefit of leaving the door open for a different outcome in the long run. United States v. Texas could return to the Supreme Court once a 9th Justice is seated on the Court, and potentially be decided differently. When a 9th Justice may be seated is anybody’s guess, since Senate Majority Leader, Mitch McConnell (R-KY) has recently affirmed that his party is satisfied with an 8 member Supreme Court, and will not vote to confirm President Obama’s nominee, Merrick Garland, and that they don’t see any reason to confirm any nominee put forward by President Obama or by President Clinton, if she is elected in November. If the Democratic Party is able to regain control of the Senate in November, perhaps a new Democratic majority in the Senate will be able to get a vote on a replacement Justice.
Even if rehearing is not granted, it is likely that U.S. v. Texas may ultimately return to the Supreme Court, unless it is rendered moot in the meantime by Congressional enactment of “holy grail” comprehensive immigration reform (highly unlikely!) or rescission of DAPA by a hypothetical Republican President (also unlikely, or maybe just my “wishful thinking”). The injunction issued by Judge Hanen and upheld by the Fifth Circuit was a preliminary injunction, and the case would now ordinarily be expected to proceed to a trial on the merits, or at least some sort of further proceedings. At the conclusion of such further proceedings, Judge Hanen may then issue a permanent injunction.
The grant of such a permanent injunction could be appealed back to the Fifth Circuit, and if it were again affirmed by the Fifth Circuit, the government could seek certiorari from the Supreme Court regarding that affirmance. One hopes that by the time the case worked its way back up through the Fifth Circuit to the Supreme Court in this fashion, there will be a 9th Justice seated on the Supreme Court. There are other scenarios being discussed that involve litigation being brought in another (more favorable) judicial circuit (such as the 9th Circuit in California), attacking the nationwide injunction issued by Judge Hanen, seeking to limit the injunction to Texas or to the States that joined Texas in the initial case. Ultimately, however, it appears that the future of DAPA and DACA+ will likely depend on who (if anyone) fills the currently vacant 9th seat on the Supreme Court. In this, as in many other things, the outcome of this November’s elections will be crucial.
After Thursday’s Supreme Court decision, the President’s protections are gone, but the enforcement plan remains in effect. President Obama showed his frustration with the decision, saying his goal was to help immigrants who had raised families here and helped the country with their work. The president said immigrants who might have qualified for the programs would still be safe from deportation. Still, deportations continue, thousands every week. In fiscal year 2015, President Obama’s Administration deported 462,463 people, the most of any year of his presidency, and more than any other president before him. And a largescale deportation operation requires a large-scale detention system. Under the Obama administration the detention system has ballooned; today more people pass through the nation’s immigrant detention system annually than through the federal Bureau of Prisons.
Quick Notes: “Low-Priority Immigrants” are still being swept up into ICE’s deportation nets: After the Supreme Court announced their United States vs. Texas “tie” decision on June 23rd, Homeland Security officials said that the Supreme Court decision would have no effect on the pace or strategy of enforcement. “Our limited enforcement resources will not be focused on the removal of those who have committed no serious crimes, have been in this country for years and have families here,” said Marsha Catron, a spokeswoman for the department. “Under this policy, these people are not priorities for removal, nor should they be.” Unfortunately, the prosecutorial discretion policies of the Obama Administration, as adopted by the Department of Homeland Security, have not been universally accepted “in the field” by rank and file ICE Officers, Detention and Removal Officers, or other front-line enforcement officials.
COPYRIGHT BY AUTHOR — 2016
This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation.
Mr. Gard has been engaged in the practice of immigration law since 1977. He is a frequent writer and lecturer in the American Immigration Lawyers Association and has served that professional organization as a Chapter Chair of the Greater Chicago Chapter, and as a Director. Written questions may be submitted to Mr. Gard. At his discretion, selected questions or issues may be addressed in subsequent articles. Mr. Gard is available for appointments for consultation in immigration law-related matters at the law offices of Immigration Attorneys, LLP, 203 North LaSalle Street, Suite# 1550, Chicago, Illinois 60601, Contact Information (email is the preferred method of contact): e-mail: rgard@immattyllp.com Telephone: (312) 661-9100 ext. 8943; FAX: (312) 661-9021; Our firm has several multi-lingual lawyers engaged in the practice of immigration law, and also has lawyers available for criminal and civil litigation and health care facility/ medical practice and licensing issues. The firm also has offices in Milwaukee (WI), Tampa (FL), and Phoenix (AZ).
