JURIST Digital Scholars
The DAPA Non-Decision: The Meaning of Missed Opportunities
The DAPA Non-Decision: The Meaning of Missed Opportunities

JURIST Guest Columnist Glenn C. Smith of the California Western School of Law discusses what a four-four Supreme Court split means for the future of President Obama’s immigration policy…

As a professor of complex constitutional and statutory law issues, I’m not used to having people answer my questions in one word!

But a one-word “No” is the proper response to the question headlining my January 27th JURIST column — “In Deciding DAPA Dispute, Will the Justices Reach Constitutional Questions?” In fact, a one-word “No” answers the broader question I would have asked a couple of weeks later, in the aftermath of Justice Scalia’s surprising death — “Will the Justices Reach ANY Questions about DAPA?”

On June 23, 2016, in a nine-word order [PDF] with no concurrences or dissents, the justices affirmed “by an equally divided court” a lower-court preliminary injunction [PDF] barring implementation of DAPA’s immigration relief. In splitting four-four, the court left a host of complicated, important and deeply troubling questions on the table. Unless the justices take the unusual step of granting the administration’s request [PDF] that the case be held for rehearing when the court has nine members, it remains unclear when or if these issues will make a return Supreme Court appearance. In the final analysis, then, the enduring legacy of the DAPA dispute could be its graphic reminder of how the dynamics and timing of federal litigation interact and sometimes clash with the quite different dynamics and timing of American politics.

US v. Texas: The Road to Non-Decision

To recap matters: The Supreme Court was the administration’s only hope for un-stalling the high-profile and highly controversial DAPA program — the 2014 Department of Homeland Security “Guidance Memo” offering “deferred legal status” (i.e., three years of freedom from deportation, with potential eligibility to work and eventually receive social-security benefits) to millions of undocumented aliens who are the parents or children of the “dreamers” offered deferred status in the prior DACA program (itself not under a legal cloud). A federal district judge located near the Texas border found DAPA invalid on administrative-procedural grounds; the court issued a nationwide preliminary injunction against DAPA implementation. On appeal, a divided 5th Circuit panel affirmed the ruling and injunction, adding that DAPA was also illegal on statutory-authority grounds.

In granting review in January, the Supreme Court upped the ante by adding an oral-argument question [PDF] going to the heart of the president’s constitutional authority. Also suggesting that the court seemed poised to render a major decision were the numerous amicus briefs filed by high-ranking state and federal officials, the longer-than-usual oral-argument time the court scheduled, and the appearance during the argument of counsel representing the House of Representatives.

Yet, all that ultimately came to naught — in one of several split decisions in the aftermath of Justice Scalia’s death and the Senate’s failure to act on President Obama’s nominee to replace Scalia.

Key Questions Left on the Table

The Constitutional Dimension: The DAPA Dispute could have contributed deeply and broadly to modern understandings of constitutional, statutory, and administrative law. To start at the top, the dispute raised core constitutional questions about reconciling the president’s constitutional authority to prioritize law enforcement with the Congress’ power to define legal statuses. These questions didn’t predominate in the April 18, 2016 oral argument. But constitutional clouds brooded over the entire enterprise. And they occasionally touched down in multi-question exchanges, such as one between Justice Sotomayor and Texas’ legal advocate over whether Congress had acquiesced in previous similar exercises of presidential power to defer deportation of unlawfully present aliens.

Whether a president is acting with Congress’s implicit permission, or is instead making and executing his own policy, matters greatly under pragmatic approaches to separation-of-powers doctrines dating back to the 1950’s challenge to President Truman’s seizure of steel mills during the Korean War — and used to decide questions of modern presidential authority, such as those surrounding President Carter’s foreign-claims-settlement actions to resolve the late-1970’s Iranian hostage crisis. Enlightenment from the DAPA Dispute about how to judge the meaning of Congress’ actions and non-actions in the immigration area could have contributed more generally to understandings about how to draw the power lines between the president and Congress.

A Host of Non-Constitutional Issues: So, too, could a ruling on the merits in the DAPA Dispute have resolved some of the important and troubling non-constitutional issues raised by the lower-court decisions. Answering threshold questions about whether the state of Texas and the other 25 states joining in the DAPA litigation had “standing” to sue would have gone a long way toward shutting down or encouraging increasingly litigious states to challenge federal-government policies about which they are out of sympathy. (See my previous column for an elaboration of the doctrinal framework surrounding “standing.”)

Note that, although, conservative “red states” sought in the DAPA lawsuit to challenge the pro-immigrant policies of a Democratic administration, a Supreme Court green light would have emboldened future challenges by “blue states” out of sympathy with executive actions taken by future Republican administrations. Indeed, at oral argument Justice Breyer echoed concerns of the dissenting Fifth Circuit judge, who warned of a “breathtaking expansion of state standing;” in a line of questioning Breyer suggested that if Texas won “every case of political disagreement” between states and the federal government “would come before the Court.”

Granted, a sweeping court ruling on these expansive implications was not inevitable. The oral argument highlighted a variety of narrower grounds for decision. To point to just a representative few: The justices could have ruled that Texas’ claim of financial injury from having to expend state resources to give driver’s licenses to now-“lawfully present” aliens flowed not from DAPA but from state policies and practices within Texas’ control. Or the justices could have limited past precedential expressions of “special solicitude” for states defending their sovereign interests to allegations of direct territorial injury, not the “indirect and speculative” financial injuries Texas asserted here. The oral argument even included a subtle theory, championed by Justice Kagan, that Texas’ real gripe was not with the DAPA directive itself, but with administrative regulations about the implications of lawful presence — regulations that could be challenged in administrative proceedings. As Justice Sotomayor then pointed out, Texas’ failure to go that route could violate familiar requirements to “exhaust administrative remedies.”

Finally, the justices were poised to clarify a range of specific, but potentially important questions about the reach and meaning of federal laws in the areas of immigration and government benefits.

But, of course, none of this clarifying happened.

What Happens Now? Law Meets Politics

In the normal course of federal litigation, the many interesting and troubling questions raised by the DAPA dispute could return to the Supreme Court at a later date. After all, the lower-court DAPA rulings ordered and affirmed a preliminary injunction based on the challengers’ predicted likelihood of ultimate success. In many cases, after district-court trial and final orders and a circuit-level appeal, the parties can again petition for Supreme Court review.

But the political timing and dynamics of the DAPA dispute are anything but “normal.” Put to one side the fact that Congress’ political stalemate over comprehensive immigration reform led the administration to search for non-legislative options in the first place. Still, there’s the reality that we are at the end of the administration championing DAPA as the way to afford relief to millions of undocumented aliens who have lived for decades in the shadows of American law and society.

A Trump administration would certainly rescind the DAPA Guidance. And although Democratic nominee Clinton has expressed support for the Obama administration’s immigration initiatives, legal officials in her new administration might find it advisable to revise the DAPA approach in light of the legal objections surfaced to date.

Such political considerations probably figured prominently in the “Petition for Rehearing” [PDF] the administration filed with the court on July 18, 2016. Acknowledging that it is “exceedingly rare” for the court to grant rehearing, the administration nevertheless urged the justices to hold onto US v. Texas over its summer recess and undertake a new round of oral argument and decision when there is a full nine-justice bench. The administration’s filing notes that “the validity of the [DAPA] Guidance is unlikely to arise in any future case” and argues that only the Supreme Court should resolve through nationally binding precedent “a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction.”

The blithe reference in my previous paragraph to “when there is a full nine-justice bench” of course highlights a second and stark way in which political dynamics and timing are at work here. The Senate Republican majority’s refusal to conduct hearings or a vote on justice nominee Merrick Garland leaves it entirely unclear if there will be a ninth justice in the meaningful near future. Those uncertainties no doubt cloud the current eight justices’ deliberations about how to handle the rehearing petition (still pending at this writing.)

Thus, although the DAPA Dispute has immediate and heart-felt implications for millions of individuals and their families, DAPA’s enduring legal legacy is likely to be as a prominent example of how political dynamics and timing intersect awkwardly with their legal counterparts.

Glenn C. Smith is a professor of Constitutional Law at California Western School of Law in San Diego. He is the co-author of CONSTITUTIONAL LAW FOR DUMMIES, a Dummies™-brand guide for law students, legal practitioners and interested laypersons.

Suggested citation: Glenn C. Smith, The DAPA Non-Decision: The Meaning of Missed Opportunities, http://jurist.org/forum/2016/08/glenn-smith-dapa-decision.php.

This article was prepared for publication by Dave Rodkey, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to him at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.