Yesterday, the Supreme Court granted certiorari in Texas v. USA, setting the stage for a blockbuster opinion on the legality of the centerpiece of President Obama’s program to lift the threat of deportation and provide temporary work permits to an estimated 4 million undocumented individuals in the middle of a Presidential election year. 


Texas v. USA involves a challenge to the DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals) programs that President Obama announced in Nov. 2014. A group of states, led by Texas as the lead plaintiff, challenged these programs in federal district court before they could be implemented and contended that these programs exceeded the scope of the President’s authority under the U.S. Constitution and violated the Administrative Procedures Act (“APA”). The presiding federal district court judge, Andrew Hanen, agreed with the plaintiffs’ contentions regarding the APA and enjoined them. The federal government, acting through the U.S. Department of Justice (“DOJ”), immediately filed an appeal with the U.S. Court of Appeals for the Fifth Circuit. After lengthy consideration, the Fifth Circuit ruled in favor of the states in November 2015 and upheld the injunction.  

While the DOJ immediately signaled its intention to file a Writ for Certiorari with the Supreme Court, it was far from a foregone conclusion that the Court would take up this matter in its current term. Due to the delayed issuance of the Fifth Circuit’s opinion, and routine procedures involved with requesting certiorari, it remained a distinct possibility that the Court would not consider the legality of these programs during its current term. This is significant because these programs have been created by executive order, and their continued existence after the next President assumes office in January 2017 is far from assured. These programs would have essentially been nullified if the Supreme Court had failed to take up this matter.

The Supreme Court signaled its interest in a full consideration of this challenge several weeks ago when it denied a request by the states to extend the briefing schedule on this Writ of Certiorari. Today’s decision indicates that, consistent with long-standing internal court practice, at least four justices favored consideration of the matter.

Impact of the Supreme Court’s ruling:

The Supreme Court’s consideration of this challenge will result in a decision during its current term. In the event that the Supreme Court rules by mid-June and reverses the U.S. Court of Appeals for the Fifth Circuit, this would give the Department of Homeland Security approximately 7 months to implement the program, run background checks, and begin issuing temporary work permits to eligible individuals before the new President steps into office. Given this tight timeframe and the massive number of expected applications, employers should be asking the following questions:

  1. How would they handle existing employees who come forward with new work authorization documents and new identities?  Employers with strict “honesty” policies should carefully consider the potential implications of terminating a worker’s employment under these circumstances.
  2. Are employees tasked with completing I-9 employment eligibility verification forms sufficiently well-trained to recognize employment authorization documents (EADs), which are the documents that would be issued to DACA and DAPA recipients, as proof of work authorization?

A vast expansion of the individuals eligible for work authorization and Social Security Numbers could also have significant implications for workplace enforcement by Immigration and Customs Enforcement (“ICE”), the willingness of employees on previously “fake” papers to challenge employer practices that they perceive to be unfair, and impact union memberships.

If the Supreme Court rules against the federal government, this could have wider implications for the 2012 DACA (Deferred Action for Childhood Arrivals) program that President Obama enacted.  That program has benefited approximately 800,000 individuals who entered the United States as children and met other guidelines by providing them with temporary work authorization, temporary relief from deportation, and depending upon state laws, the eligibility to qualify for in-state tuition at Universities (among other benefits).

While a Supreme Court decision is several months away, a wide range of groups are already positioning themselves in support of and against these programs. The sensitive topic of immigration is thus assured to remain front and center in this year’s Presidential election cycle.