In a non-precedential decision that will leave many legal observers and immigration advocates unsatisfied, the Supreme Court earlier today split 4-4 and issued a per curiam, non-precedential order affirming the decision by the U.S. Court of Appeals for the Fifth Circuit in U.S. v. Texas. This case involved the legality of the Deferred Action for Parental Accountability (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs that President Obama announced in November 2014. These programs would have provided temporary relief from deportation and work authorization to undocumented immigrants meeting certain guidelines, including those who are parents of U.S. citizens or lawful permanent residents and those who entered the United States as youth. It was estimated that over 4 million individuals in the United States would have met the guidelines of these programs. The Supreme Court’s decision does not impact the Deferred Action for Childhood Arrivals (DACA) program that President Obama announced in 2012, which remains in effect. The 2012 program is limited to certain undocumented individuals who entered the United States as children, were under the age of 31 as of June 15, 2012, have continuously resided in the U.S. since June 15, 2007, can demonstrate that they do not have a criminal record, and are in school, have completed high school or a GED certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces.


A group of 26 states, led by Texas as the lead plaintiff, challenged the DAPA and extended DACA programs in the federal district court for the Southern District of Texas before they could be implemented, contending that they exceeded the scope of the President’s authority under the U.S. Constitution and violated the Administrative Procedures Act (“APA”). A threshold issue in the case was whether the states had standing to challenge these programs; the states contended that they would suffer an economic injury because of the subsidies that Texas provides to individuals seeking drivers licenses. In February 2015, an injunction was issued, and the U.S. Court of Appeals for the Fifth Circuit upheld this injunction in November 2015. The Supreme Court agreed to hear this case in January 2016. A prior alert describing the litigation in this case can be accessed here.


The Supreme Court issued its decision in a one-page order without an opinion, underscoring the fact that this decision has no precedential value. There remains a possibility of lawsuits in other jurisdictions outside the U.S. Court of Appeals for the Fifth Circuit seeking to compel enactment of the program. Such lawsuits could, foreseeably, result in differing findings about the legality of the program in different Circuit Courts. Additionally, and while far from certain, the lack of precedent could result in the same issue being presented to the Supreme Court again if a future President decides to re-enact the program. As a practical matter, however, this decision will likely prevent the enactment of these programs during the remainder of President Obama’s term, and will ensure that the issue of immigration remains squarely in the middle of the current Presidential election campaign.

Gautham S. Ganesan will be a second-year law student at Notre Dame Law School this fall and is a Franczek Radelet LEADS Fellow.