U.S. v. Texas: The Latest Chapter in the DAPA Battle

Earlier this year on June 23, 2016, the currently 8-member Supreme Court reached a stalemate in a 4-4 tie vote regarding the legality of President Obama’s and DHS’ DAPA program (Deferred Action for Parents of Citizens and Residents). Unfortunately, this tie resulted in upholding the 5th Circuit’s decision that the program was unconstitutional.

Now, on October 3, 2016, the Supreme Court announced that they will not re-hear the case, which was requested by the Department of Justice (the DOJ represents President Obama and DHS during this type of litigation). This announcement is not a surprise, since one of the Justices that voted against the legality of DAPA would have had to now vote for a re-hearing. Such a vote would have been illogical for a Justice that opposes the program since the 5th opinion remains the law of the land due to the tie vote.

What does this mean for the future of DAPA? More and more litigation, with the next round likely to begin once a 9th Supreme Court Justice is appointed. However, rather than taking the more expedient route and having a full 9-Justice Supreme Court re-consider the U.S. v. Texas decision, a new lawsuit will have to turn the slow wheels of justice, working its way up Federal District and Appellate Courts in order to arrive at the Supreme Court once again.

While this is another setback, it is somewhat minor at this point due to the fact that it was certainly expected. It does remind us again how important this coming presidential election is, since the President alone holds the power to appoint Supreme Court judges (though as we have seen, the Senate can stall this process with their Constitutional “Advice and Consent” power).

To understand more about this issue, or how immigration law may change in the coming year, feel free to give us a call: (303) 872-6985.