The Supreme Court split 4-4 in United States v. Texas on whether the President’s deferred action immigration program violates federal law. As a result, the Fifth Circuit’s nationwide temporary stay of the program remains in effect. Next, a trial court may rule on whether the program should be permanently stayed.    

The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants 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 to lawfully stay and work temporarily in the United States. About 5 million people are affected.

Twenty-six states sued the United States. The Fifth Circuit granted them a nationwide temporary injunction preventing the program from going into effect. The states appealed to the Supreme Court on a variety of grounds.  

Now it is as if this case never went to the Supreme Court.

In granting the temporary injunction the Fifth Circuit only determined that it was “likely” the states would succeed on the merits of the case. Now a federal district court will decide whether the states in fact win on the merits.   

Before the Fifth Circuit the states challenged DAPA as violating the Administrative Procedures Act (APA) notice-and-comment requirement and claimed it is arbitrary and capricious in violation of the APA. The Fifth Circuit concluded the states were likely to succeed on both claims. It reasoned DAPA is a substantive rule, requiring the public to have the opportunity to offer comments (which did not occur), not a policy statement.

DAPA is likely arbitrary and capricious the Fifth Circuit concluded because it is “foreclosed by Congress’s careful plan” in the Immigration Naturalization Act for “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

The Fifth Circuit did not address the question of whether DAPA is constitutional. Regardless, the Supreme Court agreed to decide whether it violates the Constitution’s Take Care Clause which states that the President shall “take Care that the Laws be faithfully executed.”

Standing had also been an issue before the Supreme Court. The United States argued that the states lack “standing” to challenge DAPA. The Fifth Circuit disagreed, reasoning that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, providing a basis for standing.