Key Takeaways
- DAPA would have shielded from deportation millions of parents of U.S. citizens and green card holders, but it was blocked in court and never took effect.
- In United States v. Texas (2016), the Supreme Court split 4-4, which left in place the Fifth Circuit's ruling against DAPA without setting a nationwide precedent.
- DHS rescinded DAPA in 2017, and DACA litigation continues, with the Fifth Circuit in 2025 upholding DACA's deportation protection but not its work permits in Texas.
DACA is widely known, but its larger companion program, DAPA, never took effect. What was DAPA, and why did the Supreme Court leave it blocked?
In this TalksOnLaw Brief, Joel Cohen talks with Adam Cox, the Robert A. Kindler Professor of Law at NYU School of Law, and Cristina Rodríguez, the Sol and Lillian Goldman Dean and Professor of Law at Yale Law School, co-authors of The President and Immigration Law. They explain what DAPA would have done, how litigation stopped it, and what the case meant for DACA.
A Bigger Program than DACA
Professor Cox explains that President Obama announced Deferred Action for Parents of Americans and Lawful Permanent Residents, known as DAPA, right after the 2014 midterm elections, and that the fight over it shows the political and legal battles over the president's power to shape immigration policy. DAPA was much larger than DACA. Rather than protecting unauthorized immigrants brought to the country as children, it would have shielded from deportation the parents of U.S. citizens and of green card holders, upwards of four million people.
Blocked Before It Began
Texas and other states challenged the program before a federal district judge in Texas, a judge the plaintiffs picked, in the guests' account, because they thought he would be sympathetic. He enjoined DAPA nationwide, so unlike DACA, it was never implemented. The federal government appealed to the Fifth Circuit and then to the Supreme Court. In United States v. Texas (2016), the Court divided 4-4 and issued no opinion. As the guests explain, an evenly divided Court leaves the lower court's judgment in place, so the Fifth Circuit's ruling that DAPA was unlawful stood.
The Shadow over DACA
The Court had only eight members because Justice Antonin Scalia died while the case was pending. Based on his stated views, the guests think he likely would have joined four colleagues to find DAPA unlawful, a ruling with real consequences for DACA, since the grounds used against DAPA could just as easily apply to it. Instead, DACA's legality remained an open question that they expected to be litigated on the same theory.
What to Know Now
DAPA itself is no longer on the books; the Department of Homeland Security rescinded it in 2017. The DACA litigation the guests anticipated followed. In Department of Homeland Security v. Regents of the University of California (2020), the Supreme Court held that the first Trump administration's attempt to end DACA violated the Administrative Procedure Act, without deciding whether DACA itself is lawful. Meanwhile, Texas and other states challenged DACA in the same Texas federal court, which held the program unlawful in 2021, and DHS reissued DACA as a formal regulation in 2022. In January 2025, the Fifth Circuit held that DACA's protection from deportation is a lawful exercise of enforcement discretion but that the work authorization tied to it is not, and it limited that part of its ruling to Texas. How that ruling will be carried out in Texas has been before the district court. Separately, in United States v. Texas (2023), the Supreme Court held that states generally lack standing to challenge federal immigration enforcement priorities. Supporters of programs like DAPA see them as lawful uses of prosecutorial discretion; critics argue they amount to policymaking reserved for Congress. That debate over presidential power continues.
