President Obama's Immigration Accountability Executive Actions

On November 20, 2014, President Obama announced his Immigration Accountability Executive Actions. They were later prevented from going into effect.

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After more than a year of court proceedings, President Barack Obama’s immigration executive actions were blocked from being implemented in a 4-4 ruling delivered by the United States Supreme Court on June 23, 2016. The orders proposed expanding deferred action policies to allow individuals residing in the country without legal permission the opportunity to avoid deportation and obtain work permits and driver’s licenses

Without a ninth justice, due to the vacancy left on the court by former Justice Antonin Scalia's unexpected death, the Supreme Court was unable to rule on the case. The 4-4 split decision upheld the lower court's ruling, which blocked the new and expanded immigration policies from going into effect.

President Obama said, "Now, as disappointing as it was to be challenged for taking the kind of actions that other administrations have taken, the country was looking to the Supreme Court to resolve the important legal questions raised in this case. Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court.

President Obama added that the ruling would not change his administration's existing deferred action policies or result in immediate deportation for those who could have been granted deferred action under the proposed policies. He said, "This means that the people who might have benefited from the expanded deferred action policies -- long-term residents raising children who are Americans or legal residents -- they will remain low priorities for enforcement. As long as you have not committed a crime, our limited immigration enforcement resources are not focused on you."

House Speaker Paul Ryan (R-Wis.) praised the ruling, saying, "Today, Article I of the Constitution was vindicated. The Supreme Court's ruling makes the President's executive action on immigration null and void. The Constitution is clear: The president is not permitted to write laws -- only Congress is. This is another major victory in our fight to restore the separation of powers."

The Supreme Court's 4-4 split decision meant that the case returned to the lower court. U.S. District Judge Andrew Hanen of Brownsville, Texas, who initially issued a preliminary injunction to block DAPA and the expansion of DACA, reheard the case. Commenting on the future of DACA and DAPA, SCOTUSblog's Lyle Denniston wrote, "Technically, the policy might have another test before the Supreme Court either before or after the Texas judge has finished, but the end of the Obama term in the White House in January and the uncertainty about who will succeed him in the presidency may leave the plan abandoned."

According to the Migration Policy Institute, DAPA, if implemented, would have provided 3.6 million individuals living in the country without legal permission with work permits and protection from deportation for at least three years. The expansion of DACA would have provided deferred action for 280,000 individuals in addition to the 1.2 million individuals who had already benefitted from the program at the time.

Background

On November 20, 2014, President Obama announced his Immigration Accountability Executive Actions in a speech delivered in the East Room of the White House. He said, "We expect people who live in this country to play by the rules. We expect that those who cut the line will not be unfairly rewarded. So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation. You can come out of the shadows and get right with the law."

President Obama proposed improving legal immigration processes, strengthening border security, deporting people convicted of a felony, expanding the Deferred Action for Childhood Arrivals (DACA) program, and creating the Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) program. DACA and DAPA were the most controversial elements of the president's plan with Republican critics, including Texas Governor Greg Abbott and Sen. Mike Lee (Utah), saying that the programs were a form of amnesty. President Obama responded to these criticisms, saying, "I know some of the critics of this action call it amnesty. Well, it’s not. Amnesty is the immigration system we have today – millions of people who live here without paying their taxes or playing by the rules, while politicians use the issue to scare people and whip up votes at election time."

"Weekly Address: Immigration Accountability Executive Action," November 22, 2014.

Texas and the 25 states that brought a lawsuit against the Obama administration argued that President Obama did not have the authority to implement DAPA because it was essentially a new law. The brief submitted to the U.S. Supreme Court on behalf of Texas and the states argued that "DAPA is a crucial change in the Nation’s immigration law and policy—and that is precisely why it could be created only by Congress, rather than unilaterally imposed by the Executive."

The Obama administration argued that the president's actions were legal because Congress had given the U.S. Department of Homeland Security (DHS) the ability to administer and enforce immigration laws under the Immigration and Nationality Act (INA). The DHS secretary had the authority to decide whom to deport and whom to grant deferred action to under the INA, and "Congress has repeatedly recognized" this ability in other legislation. The United States government argued that the ruling of the appeals court, which stated that DAPA could not be implemented, "will allow States to frustrate the federal government’s enforcement of the Nation’s immigration laws. It will force millions of people—who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents—to continue to work off the books, without the option of lawful employment to provide for their families."

How did the Supreme Court rule on DAPA and DACA?

In a 4-4 decision, delivered on June 23, 2016, the United States Supreme Court affirmed the lower court's ruling, which blocked the president from implementing DAPA and expanding DACA. The ruling did not change the existing DACA policy, which was announced in June 2012; however, it did uphold a preliminary injunction preventing the expansion of DACA and the implementation of DAPA. The case returned to U.S. District Judge Andrew Hanen, who issued a preliminary injunction to block the programs in February 2015.

Texas did not directly challenge the legality of DACA, but the expansion of the program was put on hold because of the court's temporary injunction. Individuals were still able to apply for or request a renewal of deferred action under the original 2012 guidelines while the case made its way through the courts.

Which states joined the lawsuit against the immigration executive actions?

Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin joined the lawsuit against President Obama's immigration executive actions.

What did SCOTUS address in U.S. v. Texas?

See also: Major cases of the Supreme Court October 2015 term

Four questions were addressed during oral argument in U.S. v. Texas. The court first had to decide if the states had standing to sue the Obama administration. After deciding that the states had standing, the justices then considered whether the actions were lawful and whether the Obama administration violated the Administrative Procedures Act by adopting new immigration policies without allowing the public to review and comment on them.

In addition, the justices directed each party to argue whether the actions violated the Take Care Clause of the U.S. Constitution, which required that the president "take Care that the Laws be faithfully executed." Stephen Yale-Loehr, a law professor at Cornell, said that "[t]he court’s decision could redefine the balance of power between Congress and the president."

The U.S. Supreme Court issued a 4-4 per curiam decision which did not address any of the questions presented in the case. The full opinion read: "The judgment is affirmed by an equally divided Court."

What are DACA and DAPA?

Deferred Action for Childhood Arrivals (DACA) is a program that allows individuals who were brought to the United States as children without legal permission to receive relief from being deported for a period of time if they meet certain criteria. Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) proposed delaying the deportation of parents of U.S. citizens or lawful permanent residents and providing them with work permits, as long as they were in the United States since January 1, 2010, and did not pose a threat to national security or public safety.

Both programs relied on deferred action which was "[a] use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind."

Nearly 800,000 people were granted deferred action under DACA through fiscal year 2015, according to U.S. Citizenship and Immigration Services.

What did the 2016 presidential candidates said about DACA and DAPA?

See also: 2016 presidential candidates on DACA and DAPA

Republican presidential candidate Donald Trump said he would end DACA and DAPA, and Democratic presidential candidate Hillary Clinton said she would expand the programs. Libertarian Party presidential candidate Gary Johnson and Green Party presidential candidate Jill Stein both said that they supported the president's immigration executive actions, although they said that they disagreed with some of Obama's other immigration policies. All of their statements on DACA and DAPA can be found here.

Timeline of Obama's immigration executive actions

• July 18, 2016: The U.S. Department of Justice petitioned the U.S. Supreme Court to rehear United States v. Texas “before a full nine-Member Court." The filing stated that the court “should grant rehearing to provide for a decision by the court when it has a full complement of members, rather than allow a nonprecedential affirmance by an equally divided court to leave in place a nationwide injunction of such significance.”

• June 23, 2016: U.S. Secretary of Homeland Security Jeh Johnson commented on the Supreme Court's ruling in the following statement: "It is important to emphasize that this ruling does not affect the existing DACA policy, which was not challenged. Eligible individuals may continue to come forward and request initial grants or renewals of DACA, pursuant to the guidelines established in 2012. We are also moving forward on the other executive actions the President and I announced in November 2014 to reform our immigration system. This includes our changes to the Department’s immigration enforcement priorities. Through these priorities, we are more sharply focused on the removal of convicted criminals; and threats to public safety and national security, and border security. We have ended the controversial Secure Communities program. We are expanding policies designed to help family members of U.S. citizens and permanent residents stay together when removal would result in extreme hardship. And we are taking several actions to make it easier for international students, entrepreneurs, and high-skilled immigrants to contribute to the U.S. economy."

• June 23, 2016: In a 4-4 decision, the U.S. Supreme Court affirmed the lower court's ruling, which placed a temporary hold on the implementation of DAPA and expansion of DACA.

• June 7, 2016: Judge Andrew Hanen delayed his May 20, 2016, order.

• May 31, 2016: The U.S. Department of Justice (DOJ) announced that it would seek review of Judge Andrew Hanen's May 20, 2016, order in the Fifth Circuit Court of Appeals. The DOJ also asked for a stay of Hanen's order.

• May 20, 2016: Judge Andrew Hanen ordered the U.S. Department of Justice’s (DOJ) attorneys to take ethics courses for misrepresenting when the Obama administration would implement the president’s immigration executive actions. The administration “had already given the benefit of the new policy to more than 100,000 young people,” but the DOJ’s lawyers failed to inform Hanen of that fact, according to SCOTUSblog. Hanen also ordered the DOJ to provide a list containing the names of each person who benefited from the administration's policy.

• April 18, 2016: The U.S. Supreme Court court heard oral argument in U.S. v. Texas.

• April 8, 2016: The Supreme Court added a half-hour to oral arguments in U.S. v. Texas for a total of ninety minutes.

• January 19, 2016: The U.S. Supreme Court granted cert in U.S. v. Texas.

• November 20, 2015: The Obama administration appealed the ruling of the United States Court of Appeals for the 5th Circuit, and asked the U.S. Supreme Court to take up their case to implement an immigration plan originally announced in November 2014.

• November 9, 2015: In a 2-1 ruling, the United States Court of Appeals for the 5th Circuit in New Orleans said that President Obama could not implement his immigration executive actions.

• May 26, 2015: The United States Court of Appeals for the 5th Circuit ruled 2-1 that the order halting DACA and DAPA had to stay in place. The judges wrote, "Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction."

• April 7, 2015: U.S. District Judge Andrew Hanen denied the federal government's request to lift a hold on DACA and DAPA.

• March 12, 2015: The Obama administration filed an appeal to the United States Court of Appeals for the 5th Circuit to lift the hold on his immigration executive actions.

• February 24, 2015: President Barack Obama published an op-ed expressing his disagreement with Judge Andrew Hanen's February 16 ruling and vowed that his "administration will fight this ruling with every tool at our disposal."

• February 23, 2015: The Obama administration requested an emergency stay to put a hold on the injunction issued by U.S. District Judge Andrew Hanen.

• February 16, 2015: U.S. District Judge Andrew Hanen issued a preliminary injunction to block the implementation of DAPA and the expansion of DACA.

• December 3, 2014: Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia and Wisconsin and Governors Phil Bryant (R-Miss.), Paul LePage (R-Maine), Patrick McCrory (R-N.C.) and Butch Otter (R-Idaho) filed a lawsuit against the United States of America, Secretary of the Department of Homeland Security Jeh Johnson, Commissioner of U.S. Customs and Border Protection R. Gil Kerlikowske, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection Ronald D. Vitiello, Acting Director of U.S. Immigration and Customs Enforcement Thomas S. Winkowski and Director of U.S. Citizenship and Immigration Services Leon Rodriguez over President Obama's immigration executive actions.

• November 20, 2014: President Obama announced his Immigration Accountability Executive Actions, which included the expansion of DACA and the Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) program.

• November 13, 2013: Then-Speaker John Boehner (R-Ohio) announced that the House would not go to conference with the Senate on S 744. He said, "The idea that we’re going to take up a 1,300-page bill that no one had ever read, which is what the Senate did, is not going to happen in the House. And frankly, I’ll make clear: We have no intention of ever going to conference on the Senate bill."

• October 2, 2013: Rep. Joe Garcia (D-Fla.) introduced HR 15 - the Border Security, Economic Opportunity, and Immigration Modernization Act. The legislation was based on S 744, but it removed “the Corker-Hoeven border security amendment and replace[d] it with the bipartisan House border security bill, H.R. 1417.”

• July 8, 2013: Then-Speaker John Boehner (R-Ohio) said that the House would not vote on S 744. He said, “I’ve made it clear and I’ll make it clear again, the House does not intend to take up the Senate bill. The House is going to do its own job in developing an immigration bill.”

• June 27, 2013: S 744 - the Border Security, Economic Opportunity, and Immigration Modernization Act passed the Senate by a vote of 68-32. Fourteen Republicans voted with every Democrat in favor of the bill. The sweeping immigration reform bill proposed providing individuals residing in the country illegally with a pathway to citizenship and proposed strong border control measures.

• April 16, 2013: Senators Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.) introduced S 744 - the Border Security, Economic Opportunity, and Immigration Modernization Act.

• June 15, 2012: President Barack Obama announced the Deferred Action for Childhood Arrivals (DACA) program.

See also

• Major cases of the Supreme Court October 2015 term
• What happens to this term's major SCOTUS cases in a 4-4 split?
• 2016 presidential candidates on immigration
• 2016 presidential candidates on DACA and DAPA
• Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA)
• Deferred Action for Childhood Arrivals (DACA)
• Deferred action