DAPA Gets Its Day in Court

Notes from our Litigation Senior Staff Attorney on the oral arguments

This week, the U.S. Supreme Court heard oral arguments in United States v. Texas, the case that put President Obama’s executive actions on immigration — DAPA (Deferred Action for Parents of American citizens and lawful permanent residents) and expanded DACA (Deferred Action for Childhood Arrivals) — on hold. The crowd gathering from before dawn, including individuals lined up over the weekend for a chance to get into the oral arguments, as well as thousands more meeting outside the courthouse to march, gave a clear indication of the importance of the case for so many people: the Court’s ultimate decision could be life-changing.

We joined fellow advocates outside the Court to stand with immigrant families — including the nearly 400,000 Asian Americans in Texas who stand to benefit from DAPA and expanded DACA.

I was able to enter the courtroom to hear the arguments, and these are my takeaways:

Much of the oral arguments and questioning involved the question of standing. Compliance with DAPA and expanded DACA would require states, including Texas, to incur administrative costs as they provide driver’s licenses to individuals with deferred status. Justice Stephen Breyer keyed in on this issue. As background, damages suffered in terms of money lost is the quintessential example of suffering a legally cognizable injury that would support a finding of standing. However, Justice Breyer noted that at the heart of the instant dispute was a political disagreement. In the past, the Supreme Court has not conferred standing to a plaintiff just on the basis of financial injury when what was really being litigated was a political disagreement. To do otherwise, would in effect transfer political power “from the President and the Congress, where power belongs, to a group of unelected judges”, Breyer noted.

At its core, this case asks whether the President can prioritize the removal of different groups of undocumented immigrants. Immigrants with long-standing community and family ties would be deemed to be low-priority for removal. As Justice Ruth Bader Ginsburg noted, “[W]e have 11.3 million undocumented aliens in the country, and Congress, the Legislature, has provided funds for removing about [four hundred thousand]. So inevitably, priorities have to be set.”

Lost among the more legally technical arguments taking place in the Court was the fact the law at issue has the potential to impact tens of thousands, if not millions, of American families. According to the Center for American Progress, 2.6 million U.S. citizens live with a DAPA-eligible family member in the fourteen plaintiff states. Without this executive action, millions of fathers, mothers, daughters, sisters, brothers, and sons face the scepter of being subject to removal proceedings and being torn away from their families.

So it’s understandable that so many people would take the time out of their day — many sacrificing a day of work to show their support for the immigration programs. Should the U.S. Supreme Court favorably resolve the case this year, those eligible individuals wouldn’t live in fear and uncertainty, and would be able to receive work authorizations, obtain drivers’ licenses, and in some cases access health care, open bank accounts and receive in-state college tuition.

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