In 2014, the Department of Homeland Security created Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), an immigration relief program to authorize deferred action for millions of parents whose children were U.S. citizens or permanent residents. Before DAPA could be implemented, Texas along with other states successfully sued to enjoin its rollout, and the Supreme Court ultimately affirmed the injunction in 2016. Professors Cristina Rodriguez of Yale Law School and Adam Cox of NYU Law, leading immigration law experts and co-authors of The President and Immigration Law, explain the benefits DAPA sought to confer, similar to its sister program, Deferred Action for Childhood Arrivals (DACA). They discuss the litigation surrounding the program and why the Supreme Court ended up affirming the lower court's decision in United States v. Texas.
Professor Cristina Rodriguez is the Leighton Homer Surbeck Professor of Law at Yale Law School.
Professor Adam Cox is the Robert A. Kindler Professor of Law at New York University School of Law.
Full interview on the president's powers over immigration policy with Professors Cristina Rodriguez and Adam Cox: Shadow Immigration and the Power of the Presidency.
Interview with Immigration Law Experts – Prof. Cristina Rodriguez and Prof. Adam Cox
Joel Cohen (Host): We've been talking about DACA. There was another program called DAPA that involved the family members of dreamers. What was that program, and why was that blocked by the Supreme Court, Adam?
Adam Cox (Prof. Cox): So the DAPA program announced by President Obama right after the midterm elections in 2014 helps us understand the political and legal battles over the scope of the President's power to shape immigration policy. That program was much bigger than DACA. it would have protected the parents of U.S. citizen kids and also kids who are Green Card holders from deportation. So rather than just protecting unauthorized immigrants themselves, it would have protected upwards of four million family members of U.S. citizens and Green Card holders. It went to a trial judge, a federal district court judge in Texas, a judge picked by the plaintiffs because they thought he would be sympathetic to their claims, and he enjoined the program nationwide. So DAPA, unlike DACA, was never implemented.
The Supreme Court and DAPA
Host: When did the Supreme Court get involved, and what issue did they use to resolve it?
Prof. Cox: So, the Supreme Court got involved as the federal government appealed the case up to the Fifth Circuit and then to the United States Supreme Court. The Supreme Court actually didn't ever resolve the case. Instead, it divided (4-4) and couldn't issue an opinion or a judgment.
Host: Ah, interesting. So, if they couldn't issue an opinion, then the lower court's decision stands.
Prof. Cox: That's exactly right. When the Supreme Court splits evenly on an issue, then the lower court's judgment stands. That means that the Fifth Circuit's decision — that DAPA had been unlawful — stood and prevented the program from ever being implemented.
Cristina Rodriguez (Prof. Rodriguez): Probably the reason why the Supreme Court didn't resolve the legality of DAPA was because while the case was pending, Justice Scalia died. And so the court only had eight members. And based on Justice Scalia's articulated views and other opinions about DACA, it seems pretty clear that he would have voted probably with four others to find DAPA unlawful. And that could have had really significant reverberations for DACA because the grounds on which the courts have found DAPA to be unlawful could just as easily be applied to DACA, but that didn't happen. And so, the legality of DACA remains an open question, and something that we would expect to get litigated in 2021 on the same theory that was used to challenge DAPA.