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Immigration Reform 2.0: President Trump’s Proposal for Dreamers

??????????????????????????????????????????????????????????????????????????????????????????????Should the title be Immigration Reform 2.0 or 22.0?  Maybe Immigration Reform Redux?  Really, how many times have we started down this road, only to be disappointed (or, at least that’s the way I feel anyway)?  Well, we’re starting down this path … yet again (albeit with some difficulty).  So what’s the latest iteration?

On January 25, 2018, the Trump Administration House released its “Framework on Immigration Reform and Border Security”, a one-page outline of its plan to legalize the status of so-called “Dreamers” in exchange for what it calls sweeping reforms to the immigration system.   The reforms are hardly sweeping, but they are dramatic.

The President’s framework proposes significant cuts to the “legal” immigration system (i.e., U.S. citizen or lawful permanent resident family members sponsoring their own qualified family members, e.g., possibly spouses, children, parents and siblings).  This is referred to as eliminating “chain migration” or as the White House is calling it, “protecting the nuclear family.”[1] The President is also looking for massive funding for border security and interior enforcement, including $25 billion for the border wall as well as more spending for Customs & Border Patrol and Immigration & Customs Enforcement agents.  The President is also calling for the elimination of the Diversity Visa Lottery Program.

In exchange for all of this, the President’s plan would offer legal status to young people who currently have DACA status or who are otherwise DACA-eligible (estimated to be about 1.8 million people), including an opportunity to apply for citizenship after waiting a minimum of 10 years.

Not surprisingly, there’s been a public outcry against it from the Democrats and their progressive base.  The official statement from the American Immigration Lawyers Association (“AILA”) reads as follows:

This proposal isn’t a serious effort to reach a deal on the crisis created by the administration when it terminated the DACA program. The dubious relief it offers to a questionable number of Dreamers is dwarfed by its offensive assault on families, the waste of tens of billions of taxpayer dollars on harsh enforcement that does next to nothing to improve national security, and a repudiation of Constitutional principles of due process. This proposal is completely untethered from common sense, decency, or American values.

There are several angles from which I could argue against the President’s “framework”, but I will limit myself to his efforts to end what he calls “chain migration” and the economics of that.

Every year, over 1 million new immigrants (i.e., Green Card holders) are admitted to the United States.[2]  About half of these individuals are the first in their family to permanently settle in the United States.  The other half are joining their family members who arrived earlier.  This is commonly known as “chain migration.”  The starting point for these new immigrants may have been different (e.g., the family-based Green Card process, the employment-based Green Card process, or perhaps refugees who were resettled in the United States, among other possibilities).  Ultimately, though, these permanent residents and perhaps eventual citizens of the United States can thereafter start to bring their own or other family-members to the United States.

The contributions of family-based immigrants to our U.S. economy, to our local communities, and frankly to the national fabric are great.  The data suggests that they account for a significant portion of the United States’ domestic economic growth, contribute to the well-being of our current and future labor force, and play a key role in business development and community improvement.  They are also the most upwardly mobile segments of the labor force.  Here’s some data from the Migration Policy Institute.

  • Immigrants accounted for 17%, or 27.6 million, of the 161.8 million persons in the civilian labor force in 2016.[3]
  • Of the 26.2 million employed foreign-born workers ages 16 and older in 2016, the largest share, at almost 32%, worked in management, professional, and related occupations.

A 2016 panel put together by the National Academies of Science Engineering and Medicine found that “immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents.”  Among its findings:

  • Immigration has an overall positive impact on long-run economic growth in the U.S.
  • In terms of fiscal impacts, while first-generation immigrants are more costly to governments, mainly at the state and local levels, than are the native-born, in large part due to the costs of educating their children, as adults, however, the children of immigrants (the second generation) are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.

I could go on, and I am sure that those who oppose my views would come up with their own data to contradict mine.

In 1965, liberals and conservatives in Congress compromised their differences and created an immigration model that would favor “family unification.” That’s the system we have today.  By no means is it perfect.  If we restrict it, however, we will no doubt negatively impact our country’s economic growth.

Family-based immigration is essential to our economic growth, not only because of immigrants’ contributions in the workforce, but because the current policy does indeed attract the talent we hope to bring and need to bring from around the world. The United States trains entrepreneurs and other highly skilled individuals from across the world at our renowned universities. We want them to stay, to build companies and drive innovation right here in the United States.  Consider, for example, that the current CEO’s of Tesla, Google, and Amazon were all born overseas.  Many well-known companies would not exist at all if our immigration system had not enabled their founders or their parents to move to the United States in the first place.

If we create obstacles for individuals to bring their relatives to the United States, we will no doubt lose them to other countries with more progressive immigration regimes.  We need to remind ourselves that “chain migration” is not a threat to the United States, but rather an essential economic strategy.

 

 

[1]  The White House officially defines this as follows:  The process by which foreign nationals permanently resettle within the U.S. and subsequently bring over their foreign relatives, who then have the opportunity to bring over their foreign relatives, and so on until entire extended families are resettled in the country.

[2] In 2016, about 1.49 million foreign-born individuals moved to the United States, which was a 7 percent increase from the 1.38 million that entered in 2015.

[3] “Civilian labor force” is defined as civilian persons ages 16 and older who were either employed or unemployed but looking for work in the week prior to participation in the U.S. Census Bureau’s American Community Survey (ACS) and Decennial Census.

Trump’s Travel Ban 3.0 : The Latest Version, Effective 10/18/2017

internationaltravelCan someone tell me the difference between an “executive order” and a “presidential proclamation”?  I don’t think I learned that in law school, and for sure it was not on the bar exam.  Frankly, before September 24, 2017, I would likely have used the phrases interchangeably.  And yet, as of September 24, 2017, many of my colleagues are wondering about the purported difference.

The definitions of “executive orders” and a “presidential proclamations”, including their differences, is not easy to express as the U.S. Constitution does not contain any provision referring to them.  The most widely cited explanation came in 1957 from the House Committee on Government Operations, which explained the difference as follows:

Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law . . . . In the narrower sense Executive orders and proclamations are written documents denoted as such . . . . Executive orders are generally directed to, and govern actions by, Government officials and agencies. They usually affect private individuals only indirectly. Proclamations in most instances affect primarily the activities of private individuals. Since the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute. The President’s proclamations are not legally binding and are at best hortatory unless based on such grants of authority. The difference between Executive orders and proclamations is more one of form than of substance . . .[1] (Emphasis added.)

So why would the president’s first two efforts at a travel ban be in the form of “executive orders”, and his most recent effort be in the form of a “proclamation”?   Frankly, I’m not quite sure, but I suspect that whether the courts find Travel Ban 3.0 to be enforceable, either in part or in total, will turn more on its substance and not by whether it’s a presidential proclamation instead of an executive order.[2]

So, then, what’s the deal with Travel Ban 3.0?  The President’s proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign  countries.  The purported purpose was to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat to the United States. As a result of this review, eight (8) countries have been deemed to have inadequate identity management protocols, information sharing practices, and risk factors.  They are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  It was also determined that Iraq did not meet the baseline requirements, but nationals of Iraq will not be subject to an outright ban on travel, but rather will be subject to additional screening measures.

There are exemptions under the President’s proclamation, such as the travel restrictions do not apply to lawful permanent residents (i.e., Green Card holders) of those countries, and foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture. There are other exemptions as well.

There are also waivers available if a foreign national can demonstrate that (a) denying entry to the United States would cause the foreign national undue hardship, (b) entry would not pose a threat to the national security or public safety of the United States, and (c) entry would be in the national interest.

Not surprisingly, the anti-administration forces argue that this is yet another attempt by the President to further his discriminatory and anti-immigrant policies and does nothing to strengthen our national security. I tend to agree.

The new travel ban goes (or went, depending on when you’re reading this) into effect on October 18, 2017, but the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (Executive Order 13780 dated March 6, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).

Also, until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity. (This is actually an issue in the courts at the moment.)

And finally, unless an exemption does apply or an individual is eligible for a waiver, the restrictions of Travel Ban 3.0 apply to individuals of the eight (8) designated countries who (a) are outside the U.S. on the applicable effective date, (b) do not have a valid visa on the applicable effective date, and (c) do not qualify for a reinstated visa or other travel document that was revoked under the President’s earlier travel ban (Executive Order 13769 dated January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”).

I have written before, and no doubt will do so again, that immigrants and refugees contribute in a positive way to our nation by strengthening our local businesses, communities, and national economy. Travel Ban 3.0 will do little more than simply harm families, negatively impact our business community, and undermine our national values.

 

[1] Staff of House Committee on Government Operations, 85th Congress, 1st Session, Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Committee Print 1957).

[2] Both executive orders and proclamations have the force of law, akin to regulations issued by federal agencies, so they are codified under Title 3 of the Code of Federal Regulations (“CFR”), the CFR being the formal collection of all of the rules and regulations issued by the executive branch and the federal agencies.  Neither executive orders nor proclamations are legislation, however.  Neither require approval from Congress, and Congress cannot overturn them. On the other hand, Congress can pass legislation that can make it difficult, or even impossible, to carry out an executive order or presidential proclamation.  Nevertheless, only a sitting President can overturn an executive order or proclamation by issuing another executive order or proclamation to that effect.

The Dreamers’ Nightmare (DACA)

On?????????????????????????????????????????????????????????????????????????????????????????????? September 5, 2017, the Trump Administration announced that it would be ending the Deferred Action for Childhood Arrivals (“DACA”) program. As if the 2016 presidential election post-mortem wasn’t bad enough, now this. This change of policy impacts almost 800,000 young people, the so-called Dreamers, who entered the United States before they were 16 years of age, generally through no fault of their own. Dreamers have temporary protection from deportation (to countries where they have had very little contact with in their lives). In many cases, these individuals also received employment authorization.

A little reminder as to what DACA is (and soon to be “was”). In June 2012, former President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as DACA, whereby aliens who were unlawfully present in the United States, who had been brought to the United States as children, and who met other criteria, could receive “deferred action.” These young people were basically protected, albeit temporarily, from being removed from the United States. They were able to work lawfully, attend school, and basically live their lives without the constant fear of being deported. However, unlike legislation, DACA does not provide a permanent legal status to these young people, and it needs to be renewed every two years.

Now, effective immediately, no new applications for DACA will be accepted. Current DACA beneficiaries whose status will expire before March 5, 2018 are permitted to renew their status for an additional two years if they apply by October 5, 2017. Any person for whom DACA expires as of March 6, 2018 will no longer have deferred action or employment authorization.

So how did the current state of affairs come to be? Well, then candidate Trump repeatedly pledged to end DACA (and to construct a border wall) as part of his campaign platform. Indeed, right after his inauguration, the White House prepared a draft Executive Order (which was leaked to the press) dated January 23, 2017 titled Ending Unconstitutional Executive Amnesties. The Executive Order proposed to rescind the then-proposed DAPA program immediately, which was the subject of a federal court injunction, and to also stop processing new DACA applications. So bad on top of bad.

Back in June, 2017, not seeing any movement on the President’s campaign promise, Texas and nine other states sent a letter to Attorney General Jeff Sessions stating that unless the Department of Homeland Security (“DHS”) agreed to “phase out” the program by rescinding Secretary Napolitano’s memo authorizing DACA and halting approval of any new or renewal DACA applications, they would take legal action to challenge DACA. President Trump caved to their demands.

In this regard, on September 4, 2017, Attorney General Sessions sent a letter to Acting DHS Secretary Elaine Duke stating the DACA was an “unconstitutional exercise of authority by the Executive Branch” and that legal challenges to the program would “likely” result in DACA being deemed unlawful. On September 5, 2017, Acting Secretary Duke issued a memorandum officially rescinding the program.

There’s so many ways I can go with this. For today, let’s focus on Attorney General Sessions’ statement that DACA was an “unconstitutional exercise of authority by the Executive Branch.”

President Obama’s administrative action was, at the time, the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations. According to the American Immigration Council, since 1956, there have been at least thirty-nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.

The Immigration and Nationality Act (“INA”) and its implementing regulations are replete with examples where DHS will either refrain from an enforcement action, like electing not to serve and thereafter file a charging document (commonly known as a Notice to Appear) with the Immigration Court, as well as decisions to provide a discretionary remedy when an immigrant is already in removal proceedings, such as granting stays of removal, granting parole, or granting deferred action.

The INA itself authorizes the President’s legal authority to exercise prosecutorial discretion, including by prohibiting judicial review of three (3) types of actions involving the exercise of prosecutorial discretion (i.e., the decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders).

Congress has also legislated deferred action in the INA itself as a means by which the executive branch may use, in the exercise of its prosecutorial discretion, to protect certain victims of crime, abuse, or human trafficking.

Notably, the INA also has a specific provision which recognizes the President’s authority to authorize employment for non-citizens who do not otherwise receive it automatically by virtue of their particular immigration status. It is this provision, in conjunction with other regulations, that currently confers eligibility for work authorization under DACA.

Beyond this, memoranda issued by federal agencies authorized to implement and enforce our nation’s immigration laws recognize prosecutorial discretion too, including a seminal one issued by legacy-Immigration and Naturalization Service (“INS”) Commissioner Doris Meissner in 1990 to her senior agency staff. There are earlier memoranda as well opining as to the legality of prosecutorial discretion too.

Finally, the Supreme Court held in Arizona v. United States that a “[a] principal feature of the [deportation] system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [deportation] at all . . . .” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).

As a result of all of the above (i.e., the INA and its implementing regulations, Supreme Court decisions, and agency memoranda), there have been at least thirty-nine (39) instances since 1956 where a president has exercised his executive authority to protect aliens, generally in the interest of simply keeping families together.

Our history is replete with examples of U.S. presidents, in the name of prosecutorial discretion, issuing directives that provided for deferred action (or whatever they may have called it at the time) to non-citizens of the United States. Since his September 5, 2017 announcement ending DACA, President Trump has made positive comments about Dreamers, and now says he will “revisit” the program if Congress does not act. Let’s see if he has the political courage to do so.

Day 6 : Trump Signs Executive Orders Targeting Illegal Immigration

BorderSecurityImageHot off the press. Today, President Trump issued two (2) executive orders relating to immigration, one on border security (e.g., calling for the construction of a wall along the U.S.-Mexico border, etc.) and one on interior enforcement (e.g., including various provisions relating to enforcement of United States immigration laws, including withholding federal grant money from sanctuary cities).

Like President Obama before him (who he all so often criticized for using executive actions to enforce our immigration law), President Trump is using executive actions to enact these new immigration policies. (Thus far, there have been no changes announced as to President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program.)

Here’s a high-level overview of what we know.

1. Southern Border Wall. The President announced that the United States will construct a wall along our U.S. – Mexico border, based apparently on authority under the Secure Fence Act of 2006 signed into law by President George W. Bush (which called for 700 miles of “reinforced fencing” along the U.S. – Mexico border, along with enhanced surveillance systems). At this point, there are just rumors as to how this will be paid for.

2. Detention for Illegal Entry. The President is seeking new policy guidance for all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the Immigration and Nationality Act, including the termination of the practice commonly known as “catch and release” (whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law).

3. Curbing Funding to Sanctuary Cities. The President’s executive orders also seek to end Sanctuary Cities by stripping grant funding for those cities.

4. Temporarily Halting Refugee Admissions. The President is seeking a 120-day pause in refugee admissions to the United States, with the exception of those fleeing religious persecution if their religion is a minority in their country of nationality.

5. Banning Foreign Nationals from Certain Muslim-Majority Countries. The President is banning entry into the United States for at least thirty (30) days all immigrant and nonimmigrant nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. He also may require that all applicants from those countries (and perhaps others) demonstrate that he or she is not a security or public-safety threat to the United States.

6. Uniform Screening for Immigration Benefits. The President announced that there will be added requirements to screenings and procedures for all immigration benefits to identify fraud and to apparently detect an applicants’ intent to do harm. (Perhaps this is the “extreme vetting” we heard so much of on the campaign trail.) The President is also suspending the Visa Interview Waiver Program, essentially requiring all visa applicants to attend a visa interview, unless they are otherwise exempt from doing so under the law.

This is obviously a fluid situation, so I will endeavor to update this as appropriate.

The Inauguration of Donald J.Trump, Day 1

dreamstime_xs_62076674-copy“We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were essentially the very first words uttered by now President Trump in his inaugural address.

When I first went back to re-read the President’s speech, I didn’t think much of this particular statement. Upon reflection, though, given the President’s rhetoric on the campaign trail, and even since he was elected, I find it a bit ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”

“All of our people.” Presumably this means everyone that’s here, right? Citizens and non-citizens alike? Or does “our people” have a more limited meaning? Just citizens? What about permanent residents (i.e., Green Card holders)? What about people lawfully here on temporary visas? Am I reading too much into the President’s statement?

I just received an email from a colleague who, in a very different context, said “Language is important. Actions are important.” He was right in the context he used it. On Day 1 of a Trump presidency, language is very important. For every other day, actions will be very important.

“Every decision on … on immigration … will be made to benefit American workers and American families.” Really? What about everyone else who are lawfully living in the United States?

I have clients and colleagues calling me daily about what a Trump presidency means on the immigration front. And not just what I describe as at risk, or undocumented folks. Professionals too. I’ve tried to answer that question so many times, but the truth is, I really don’t know. Frankly, no one knows beyond those that are closest to the President. I suspect we’re about to find out.

Anecdotally, the news has not been good, and by all accounts, the Executive actions that former President Obama took (e.g., DACA, etc.) are no doubt in jeopardy.

President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity. Now let’s get to work on a compassionate way to make that happen. (And for God’s sake, let’s tackle some meaningful immigration reform in the process.)

Election Post Mortum – At Risk Population of Immigrants

??????????????????????????????????????????????????????????????????????????????????????????????I think I went to bed around 10:30 PM on election night.  Pretty early for sure.  But once the analysis was coming in on voting trends in Florida and Michigan, I knew the writing was on the wall.

So what does a Trump presidency mean in the world of immigration?  Potentially a lot.  I am very fortunate to have a diverse law practice, and within our immigration practice, we serve both corporate clients (e.g., from start-ups to mature businesses) and individuals and families.  A fair amount of the individuals that we serve are what I consider to be at-risk; some are here in the United States lawfully, and others not.  Many do not want to go home.  These are amazing people, with amazing and often horrifying stories to tell of why they came to the United States, and how.  Unfortunately, because of what we’re seeing in the aftermath of the election, many of them are now scared, really scared (including some of our corporate clients)!

On the one hand, we have business clients who are concerned about their foreign national employees, whether they’re going to be able to remain here, whether their working status will be able to be extended, whether they can safely take business trips outside the United States and return unimpeded.  All sorts of questions.  I try to assure these folks that nothing, yet anyway, has changed, as far as their employees are concerned.

And then we have what I refer to as our at risk clients, some here lawfully and some not, many who came to the United States leaving terrible and dangerous situations back in their home countries, and who are legitimately fearful to return.  Many of these individuals are unaccompanied minors, kids who have been abandoned by their families back home and who made perilous journeys across our Southern border, seeking a better life.  I am very concerned about this population.

This is the time when scammers, and so-called notarios, are likely to come out of the woodwork.  We’re advising clients not to fall for scammers or notarios who will prey on this at risk population, people who are often confused and are no doubt fearful about the election results.

We’re receiving daily calls from clients and potential clients who are afraid of what the next four years may mean to them and their families, their businesses, and their communities.  Our job now, more than ever, is to work with them, help them realize the American dream, and help them overcome any obstacles that may be created by our new President and our immigration laws and regulations.

When we receive these calls, our first response is “don’t panic”!  With perhaps one or two exceptions, we do not know for sure exactly what will happen when President-elect Trump takes office in January.  We’re advising our clients not to make any hasty or rash decisions, and instead take the time necessary to review their particular situation, get the facts, review the law, and know their rights.

One of the things that the President-elect said he would do on “Day 1” is rescind many of the executive actions put into place under the Obama Administration.  The biggest one, in the immigration arena, is no doubt President Obama’s 2012 initiative known as Deferred Action for Childhood Arrivals (“DACA”).  That program allows some aliens who are unlawfully present in the United States, and who had been brought to the United States as children and met other criteria, to also receive deferred action and, in many cases, employment authorization.

As of June 30, 2016, U.S. Citizenship and Immigration Services (“USCIS”) had approved close to 750,000 DACA applications (since 2012).  We do not know if, how or when DACA might end.  President-elect Trump could take action on DACA immediately or soon after his inauguration, weeks or months later, or perhaps not at all if he softens or changes his position (as he has so often done of late).

Finally, one of the biggest things that we are highly recommending to our clients is, if they are eligible, to apply for citizenship in the United States.  Of course, everyone’s situation is not the same, but if someone meets the basic eligibility requirements for becoming a U.S. citizen, and they have no adverse factors in their background that would make them ineligible for citizenship (or worse, potentially removable from the United States), we’re advising them to take a hard look at applying for U.S. citizenship.  Citizens of the United States have so many more protected under the law than someone who is not.

These are interesting times we live in.  And its only just begun.

Is the Glass Half Full or Half Empty? Supreme Court Texas vs. United States

imm_6On Monday, April 18, 2016, the U.S. Supreme Court heard oral arguments in the case Texas v. United States, 15-674, which is the action by the State of Texas (along with 25 other states) to block the Obama Administration’s implementation of expanded Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”).

I noted in an earlier piece that in addition to the questions presented by the Obama Administration’s petition,[1] the Court also directed the parties to brief and argue the plaintiff-states’ Take Care Clause claim.[2]  Another big issue that the Court would need to address, indeed a threshold issue, is whether the State of Texas had “standing” to bring the action in the first place.

Prior to oral argument, most commentators (whether legal or otherwise) thought that Chief Justice Roberts might avoid dealing with the main issues in the case, and instead focus on the threshold issue of standing, the question being whether the states challenging the Obama Administration’s plan to implement DAPA and expanded DACA suffered the sort of direct and concrete injury that gives them standing to sue.  Historically, Chief Justice Roberts has not been a proponent of resolving political disputes in the courts, which this one obviously is.

Texas (and the other states) argued that they have standing because they might incur  additional costs when issuing drivers’ licenses to beneficiaries of the DACA and DAPA initiatives.  In reality however, these claims are nothing more than allegations of indirect or incidental effects, and interestingly, since the State of Texas subsidizes driver’s licenses, any alleged harm is really of its own creation.

In my view, the issue of standing became much more important with the passing of Justice Antonin Scalia in February, 2016.[3]  If Chief Justice Roberts was really focused on the threshold issue of standing, he might then try to decide the case on more narrow procedural grounds, and avoid what could end up being a deadlock of 4 – 4 among the remaining voting justices (and thereby allowing the district court’s injunction prohibiting the implementation of the Obama Administration’s November 2014 immigration program to stand).

And then came April 18.  Within minutes of the opening of oral arguments, Chief Justice Roberts seemed troubled, if not unpersuaded, by the Obama Administration’s argument on standing.  Essentially, Chief Justice Roberts stated that if Texas did deny licenses to DACA and DAPA beneficiaries, those individuals would then likely sue the state, perhaps on Equal Protection grounds.  Chief Justice Roberts opined that this would put Texas in “a real Catch-22” (i.e., the state can remedy the legal harm by refusing to give licenses to some immigrants, but in doing so, it would open itself up to a lawsuit).  Not a good start at all.

The Court then went into the real issues, and not surprisingly, the justices were pretty much split down ideological grounds.  So, what could happen?

First, I suppose the Court could still dismiss the action for a lack of standing.  If this happens, the entire case will come to an end.  The Obama Administration could then implement DAPA and expanded DACA.  Unfortunately, I don’t see this as likely (but I can still dream).

Second, the Court could reverse the Fifth Circuit on any number of legal issues, thereby allowing the Obama Administration’s initiatives to move forward. If it did so, however, this would likely not be the end of the lawsuit. That’s because the district court could then go on to decide if the Obama Administration’s initiatives are constitutional. And, then the decision of the district court could be appealed, basically meaning the entire case could go back to the Fifth Circuit and the Supreme Court … again.

Finally, the Court could affirm the Fifth Circuit, which would uphold the district court’s preliminary injunction. This means the case would also go back to the district court for the case to simply continue on.  As with the second scenario, any resulting district court decision could later be appealed, meaning the case could again go back to the Fifth Circuit and the Supreme Court.

I have noted this before.  President Obama’s administrative action was but the latest among many of his predecessors in the Oval Office who relied on their executive authority to deal with important immigration issues during their administrations.  According to the American Immigration Council, since 1956, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together.  Today, however, the climate is very different, and what essentially should be a legislative issue being resolved in Congress is now a political issue being resolved in the federal courts.

Now it’s a waiting game until the end of the Court’s term in June.    It seems to me, based upon Chief Justice Roberts’ questions, that the odds of a favorable decision from the Court at this juncture are not very high.

[1] The questions presented by the Obama Administration were (a) whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action, (b) whether the Guidance is arbitrary and capricious or otherwise not in accordance with law, and (c) whether the Guidance was subject to the APA’s notice-and-comment procedures.  The “Guidance” refers to the Secretary of Homeland Security’s memorandum dated November 20, 2014 directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.

[2] The question presented here was “[w]hether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.”

[3] Clearly nobody who follows the Supreme Court was counting on Justice Scalia to vote in favor of the Obama Administration’s position in this case in any event.

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