DAPA and the Limits of Executive Powers

By Gabriel Maliha

Gabriel Maliha is a junior at the University of Pennsylvania studying criminology.

In November 2014, President Obama announced a new immigration reform program: Deferred Action for Parents of Americans (DAPA). The policy would grant “lawful presence” (and right to work) for three years to unauthorized immigrants who are the parents of U.S. Citizens or permanent residents and have been in the country since at least January 2010. [1] Additionally, for “lawful presence” to be granted, the Department of Homeland Security (DHS) has to deem these immigrants not be a threat to national security.
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Texas, along with 25 other states, promptly challenged the new policy on three grounds. First, the policy change is “substantive and non-discretionary” and violated the Notice-and-Comment Rulemaking provisions of the Administrative Procedure Act (APA). Second, the policy violated the provisions of the Immigration and Nationality Act (INA). Third, in enacting the new program, the president violated the “Take Care Clause” of the United States Constitution.  This clause requires the president to “take care that the laws be faithfully executed.”[2] By violating the APA and the INA, these states argued that these violations are causing the President to simultaneously violate the “Take Care Clause.” The states also asserted “standing” (a party that would suffer a legal injury as a result of the policy) under Article III of the Constitution based on the economic costs of increased expenditures on law enforcement, health and education due to DAPA. The states contended that the “lawful presence” status, under the new policy, would entitle a significant number of individuals to new benefits subsidized by the states, thus causing the economic expenditures of the states to increase. [3]

A federal district court in Texas determined that the States had standing because Texas would have to spend more on subsidized drivers licenses than the new lawfully present individuals would be entitled to under state law if the new policy went into effect. Further, the court found that the policy was substantive enough and not sufficiently discretionary for the APA not to apply. In that regard, the court quoted the President that DHS employees would “suffer consequences” if they did not follow the new directive. [4] The district court granted a preliminary injunction against the new policy, in effect blocking further implementation.

The Department of Justice appealed the injunction to the United States Court of Appeals for the Fifth Circuit. It contended that the states have no standing in challenging a federal policy on immigration simply because it had collateral consequences, and for the courts to rule as such would potentially open any federal policy to challenge by the states. The Justice Department further asserted that nothing in DAPA mandates Texas to grant driver's licenses, and the state could simply change its laws. Substantively, the administration said that INA as written by Congress gives DHS discretion as to enforcement and that courts have consistently not inserted themselves in prosecutorial discretion. [5][6][7]

The Fifth Circuit agreed that the states had standing and affirmed the Lower Court’s preliminary injunction against the implementation of DAPA. The court said that the states met all the elements required for injunctive relief: They have “established substantial likelihood of success” on merits; they are likely to incur “irreparable harm” without the injunction; the “balance of equities” supports the state's’ contentions and an injunction serves the “public interest”. [8][9] However, the appeals court did not rule on the merits of the case. Despite this, the appeals court did agree with the lower court on standing and on the applicability of APA, and went further by finding that the federal government lacked authority under INA to enact DAPA and branded this action “arbitrary and capricious”. [10][11]

DOJ asked the United States Supreme Court to review the fifth circuit decision and the court granted certiorari (accepted the case) and asked the parties to be ready to argue the “Take Care Clause” issue, in addition to the issues reviewed by the lower courts. The Supreme Court does not usually review issues that have not been examined by lower courts, thus making this case  difficult to interpret. Perhaps the court wants to decide all the potential issues at one time, or maybe the four Supreme Court justices find merit in that argument. [12] Also, it seems that the court is ready to decide this case (if they find that the states have standing) without it being tried in lower courts first.
Of the four issues in this case: Standing, applicability of APA, Violation of INA and “Take Care Clause”, it is the last one by far that would have the most important implications as to the limits of executive power. The recent death of Justice Scalia makes the court ruling even less predictable. Stay tuned.


[1] “Understanding the Legal Challenges to Executive Action”. Jan. 21, 2016. http://www.Immigrationpolicy.org/just-facts/understanding-legal-challenges-executive-action.html
[2] Howe, Amy. “Court will review Obama administration’s immigration policy: In Plain English”. SCOTUSBLOG (Jan.19, 2016, 4:39 PM).http://www.scotusblog.com/2016/01/court-will-review-obama-administration-policy-in-plain-english.html
[3] Denniston, Lyle.  “Immigration Policy: Review and decision this Term”. SCOTUSBLOG (Jan. 19, 2016, 9:50 AM). http://www.scotusblog.com/2016/01/immigration-policy-review-and-decision-this-term.html
[4] Texas V. United States, 809 F.3d 134 (5th Cir. 2015)
[5] Ibid
[6] Denniston, Lyle. “States want wider immigration review, if Court takes cases (FURTHER UPDATE)”. SCOTUSBLOG (Dec. 29, 2015, 6:37 PM). http://www.scotusblog.com/2015/12/states-want-wider-immigration-review-if-court-takes-cases.html
[7] Howe, Amy. “Court will review Obama administration’s immigration policy: In Plain English”. SCOTUSBLOG (Jan.19, 2016, 4:39 PM). http://www.scotusblog.com/2016/01/court-will-review-obama-administration-policy-in-plain-english.html
[8] “Understanding the Legal Challenges to Executive Action”. Jan. 21, 2016. http://www.Immigrationpolicy.org/just-facts/understanding-legal-challenges-executive-action.html
[9] Texas V. United States, 809 F.3d 134 (5th Cir. 2015)
[10] “Understanding the Legal Challenges to Executive Action”. Jan. 21, 2016. http://www.Immigrationpolicy.org/just-facts/understanding-legal-challenges-executive-action.html
[11] Texas V. United States, 809 F.3d 134 (5th Cir. 2015)
[12] Howe, Amy. “Court will review Obama administration’s immigration policy: In Plain English”. SCOTUSBLOG (Jan.19, 2016, 4:39 PM). http://www.scotusblog.com/2016/01/court-will-review-obama-administration-policy-in-plain-english.html
​Photo Credit: Flickr User dcblog

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