In November of 2014, after Congress refused to pass any immigration reform, President Obama issued an executive order to help those that didn’t have legal status in the United States and had children that were born in the U.S.  The program was called Deferred Action for Parents of Americans, or DAPA. 

To qualify for DAPA, the applicant needed to pass a criminal background test, be in the United States for at least the past 5 consecutive years, and pay taxes.  If the applicant was approved under DAPA, he or she would be allowed to work and would not be subject to deportation.  DAPA would not provide a green card or citizenship. 

President Obama said that, under DAPA, he was merely using his constitutional discretion to decide who should be deported.  He said that the government could not possibly deport all of the estimated 11 million people living in the United States illegally and wanted to focus on deporting criminals instead of breaking up law abiding families, though here without legal status are not posing a threat to the public.

Texas and 25 other states joined in a legal action, entitled Texas v. United States, in which they challenged DAPA’s validity.  The lower court judge decided in favor of the challengers to the law and issued a restraining order to keep DAPA from going into effect pending the Obama Administration’s appeal. 

The Obama Administration appealed to the Fifth Circuit Court of Appeals and asked that the restraining order be lifted while the appeal was pending.  The Fifth Circuit refused to remove the restraining order.  The Obama Administration then appealed to the U.S. Supreme Court.

On January 19, the Supreme Court agreed to hear the matter this term, which will end in June.  The Supreme Court will consider four issues:

1) Do Texas and the other 25 states have the legal authority, called standing, to challenge DAPA?  To have standing, the parties bringing the action need to show that they would be harmed by DAPA.

2) Does President Obama have the legal right to use his discretion to decide who is to be deported?

3) Does the Department of Homeland Security need to notify the public about DAPA and give the public the opportunity to make comments before DAPA is implemented?

4) Does DAPA violate the Constitution’s “Take Care Clause,” which requires the president to “take care that the laws be faithfully executed.”

It appears that this matter will be argued in April and decided at the end of June.  Consequently, if DAPA is upheld, the Obama Administration will have little time to implement it.  Since DAPA is an executive order, even if the Supreme Court upholds DAPA, the next president, who will take office on January 20, 2017, can immediately cancel it in whole or in part. 

Almost certainly Congress will take no action on immigration reform in the foreseeable future.  Accordingly, the only hope for the millions who would be helped by DAPA is that the Supreme Court decides in favor of the Obama Administration and that a Democrat is elected president in November.