As most readers know, the President announced late last year that he was issuing executive actions which would create numerous benefits to individuals and employers alike. However, by far the benefit which has generated the greatest interest, both positive and negative, is the Deferred Action for Parental Accountability (DAPA).
In essence DAPA promises that a person in the United States without immigration status (is “unlawfully present”) who is eligible by DAPA guidelines may apply for and receive a benefit which directly provides:
- a work permit (employment authorization document, EAD) for three years, subject to renewal; and
- a commitment from the Administration that the person will not be placed in removal proceedings while they have that work permit.
The essential ground for eligibility is that the applicant have a child who is a United States citizen or has the green card. Other conditions on eligibility have not yet been announced.
There are at least three substantial indirect benefits to having a work permit which I will treat in detail in a subsequent blog: acquiring a driver’s license and social security number, and recouping the federal earned income tax credit for the three prior tax years, if eligible.
The executive action creating DAPA took effect immediately, but it was always understood that it would take an unannounced period of time to implement the program by preparing necessary guidelines, forms, and training additional staff. The consensus was that the program would be implemented in May of 2015 so that eligible individuals could complete and submit the necessary forms to the United States Citizenship and Immigration Services unit of the Department of Homeland Security (DHS).
Extremely strong opposition to the President’s creation of the DAPA program arose even before his announcement. The Republican Party which in January 2015 took control of both houses of the Congress issued dire warnings to the President and then attempted several parliamentary maneuvers to block funding of the program, even though it was understood that the program, at least in large part, could run on the application fees it would generate. The House Republicans even attempted to block funding for the entire Department of Homeland Security, just to invalidate DAPA, even though it was apparent that any such legislative effort would fail, if only because the President had announced that he would veto any such bill.
Nonetheless the House Republican Speaker pushed his Party’s efforts to the very brink of defunding DHS and its vital security services. He must have known that his course of action was risking virtually certain embarrassment, disenchantment and loss of Party prestige; indeed that did occur when at the eleventh hour his Party capitulated and DHS was fully funded for the fiscal year.
Simultaneously a lawsuit was commenced in the federal District Court for Brownsville Texas in a case now known as Texas v. US. The plaintiffs in the suit were State Attorneys General and Governors from some two dozen so-called “red” States. The authors of the suit would readily admit that they had “cherry-picked” that particular District Court because it had only two judges, one of whom is a Judge Haney, widely known for his expression of highly negative personal views about presidential action in the field of immigration law. (It is hardly unusual for parties, including progressives, to maneuver to get the judge they want to hear their case and it is not unlawful to do so.)
Apparently, purely by the luck of the draw, assignment of Texas v. US went to Judge Haney who on February 23rd 2015 ruled that:
- On the threshold question of whether the plaintiff States were entitled (“had standing”) to even bring the suit against the President, that indeed at least Texas had standing, allowing the suit to go forward; and
- On the question of whether the President had violated a federal statute requiring him to take qualifying steps of publication and public comment before issuing his executive action, the President had indeed violated the statute, causing the Court to temporarily enjoin the Executive Branch from carrying out the DACA program.
The Administration announced that it would abide by the temporary injunction at a national level, even though it was issued in a single federal district. (The District Court order defers ruling on the Plaintiffs’ assertion that the President would be acting unconstitutionally in implementing DACA.)
Since then the federal government has moved that Judge Haney issue an emergency stay to his own temporary injunction, if only as it applies to all plaintiffs except Texas. Not surprisingly on March 9th the Judge declined to, in effect, overrule himself.
The Administration has filed an appeal of the temporary injunction to the next level of federal court, the Fifth Circuit Court of Appeals at New Orleans, asking initially for an emergency stay of the lower court’s temporary injunction by the end of March. In the alternative the Administration requests that the effect of the temporary injunction be limited to Texas, or at least not apply to the approximately half of the States which were not plaintiffs. It has requested the Court’s fast track treatment of the underlying appeal.
The Fifth Circuit bench is generally known for its especially conservative posture. (Some two-thirds of the Justices were appointed by Republican Presidents.) If a stay is not granted, argumentation to the Court on the underlying case is expected in early May. Appellate cases are normally argued to a panel of three Justices from the entire membership. After the panel’s ruling either party can request review by the Court en banc when all of the Justices would sit for the purpose of sustaining or overruling the original panel’s holding.
Whatever transpires in the District and Circuit courts, it appears most likely that Texas v. US, and the fate of DACA, can be resolved only in the US Supreme Court. That Court normally takes a summer recess beginning in June. If the case does go to the Supreme Court, it would be a very close call whether the Court might expedite and rule on the case before its recess which carries over into September.
On this website I will regularly update the progress of Texas v. US in the federal courts and how it is affecting Getting DAPA Done. In addition, regarding DAPA itself, there is an array of subjects which I will treat in forthcoming blogs:
- the substantial indirect benefits which flow to someone with the DAPA benefit
- the degree of risk which a DAPA applicant might be running for himself and his family by applying
- the difference DAPA could make in an individual’s life
- how DAPA fits into the overall scheme of possible comprehensive immigration law reform
- how employers would benefit from DAPA, and whether they might encourage their employees to apply
- how difficult the process of applying for DAPA is expected to be, and what kind of assistance an individual who is considering applying should look for
As DAPA rides the waves of judicial and political challenges, we should be watching for unexpected events in its voyage. I will be here to report on all of that at this website.