by Simon Lazarus, Senior Counsel, Constitutional Accountability Center
*This post originally appeared on Balkinization.
The Texas challenge to DAPA
In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities. As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.
The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states. Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide. Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers. Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place. To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.