Supreme Court Decision on DAPA Harms Families

After months of what seemed like endless waiting, the United States Supreme Court finally issued its decision last Thursday, June 23rd, regarding the extension of DACA and going forth with the DAPA program. For those of you who don’t know what the DACA extension and the DAPA program are, here’s a quick rundown regarding the issues that the eight justices of the Supreme Court had to settle:

DACA Extension:

DACA (short for Deferred Action for Childhood Arrivals) was a program that was implemented in June 2012 that allows for people who entered the United States as children to have a two-year renewable work authorization. In order to qualify for DACA, you had to have entered the U.S. before you were 16 years old and before June 2007, be younger than 31 years old as of June 15, 2012, and meet some educational and character requirements.

In November 2014, President Obama announced that he wanted to expand DACA. He wanted to eliminate the requirement that applicants had to be younger than 31 years old and change the requirement of being present in the U.S. from June 2007 to January 1, 2010. In addition, President Obama wanted to extend the validity of work permits from two years for current DACA holders to three years.

DAPA Program:

On the same date that he announced the DACA Extension, President Obama also announced a program called Deferred Action for Parents of Americans and Lawful Permanent Residents (aka DAPA). The DAPA program would have allowed parents of U.S. citizen children and permanent residents to request deferred action and receive work authorization. Under this Executive Action, parents would be able to work lawfully and provide for these citizen children without the fear of deportation so long as they did not commit any crime that could subject them to deportation proceedings. Parents would be able to legally work and provide for their families and be held accountable for their actions, including the payment of taxes.

Texas v. United States:

Texas, along with several other states, challenged the DAPA and DACA Extension programs, arguing that the DAPA violates the Constitution’s Take Care clause as well as notice-and-comment rulemaking of the Administrative Procedure Act. The Constitution’s Take Care clause requires the President to “take care that the laws be faithfully executed” (U.S. Constitution, Art. II, § 3), meaning that the President has the responsibility to faithfully uphold and enforce laws, even if he disagrees with those laws. The notice-and-comment rulemaking requirement of the Administrative Procedure Act ensures that if an administrative agency of the U.S. makes a new rule, that agency must provide notice to the public that it is creating a new rule, and give people the opportunity to make comments regarding the proposed new rule.  

The U.S. District Court in Southern Texas agreed with the States’ argument that the new DAPA program violated the notice-and-comment requirement, and issued an injunction to temporarily stop the Department of Homeland Security from implementing the DAPA program. The Obama Administration appealed to the federal circuit court, which affirmed the lower court’s ruling. And so the case was once again appealed, this time to the Supreme Court for a decision.

Unfortunately, the death of Justice Scalia in February left the Supreme Court with a panel of eight judges. Without out the ninth vote of the vacant justice seat, the Supreme Court panel of judges could be — and were — equally divided in their decision regarding whether to allow DAPA to move forward or not. If an equally divided decision is made, then the lower court’s decision is affirmed. Hence, with the 4-4 decision of the Supreme Court that was issued last Thursday, the lower court’s decisions is upheld, and the DAPA program cannot move forward.

What does the Supreme Court’s Decision Mean?

The Supreme Court’s decision to uphold the injunction on implementing DAPA means that millions of undocumented residents will continue to live unauthorized and untracked in the United States. They have no incentive to “get right” with the law. If the Supreme Court had passed DAPA, it would have meant that millions of parents would have had work authorization to legally and financially support their families and pay taxes. With the added workforce and taxpayers, the U.S.’s economy would grow, thereby benefiting communities and cities everywhere. Instead, millions of U.S. citizen children will most likely continue to grow up in lower-income households, which will result in lower education and a higher risk of delinquency for these children. They will also grow up with the fear that they could be separated from either or both of their parents, leaving them to grow up in the shadow of constant anxiety. It is estimated that there are approximately 6 million U.S. citizen children in these situations. Hopefully, Congress will take steps to reform immigration laws to help these struggling children and their families.

Crystal Wong