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U.S. Supreme Court to Weigh Obama Deferred-Action Immigration Policy

By Mark Walsh — January 19, 2016 3 min read

The U.S. Supreme Court on Tuesday said it would take up the Obama administration’s policy offering relief for undocumented immigrant parents of children who are U.S. citizens. The case may also affect a related policy regarding undocumented children, and is connected to a larger debate over immigration policies that has drawn in students, educators, and schools in multiple ways.

The administration’s 2014 policy, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was challenged in a lawsuit by 27 states, led by Texas, that argued the administration exceeded its administrative powers and violated a provision in Article II of the U.S. Constitution that the president must “take care that the laws be faithfully executed.”

A federal district court in February 2015 blocked the DAPA policy from taking effect, holding that the states likely had valid claims under the Administrative Procedure Act. A panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 2-1 in November to uphold the injunction. Besides likely violations of the APA’s notice-and-comment requirements, the majority held that the policy was “manifestly contrary” to a federal immigration statute.

President Barack Obama’s administration sought a fast-track appeal in the Supreme Court, on the theory that if the court didn’t take up the case this term, the end of the president’s term in January 2017 would doom the policy.

U.S. Solicitor General Donald B. Verrilli Jr. told the justices in a brief in that the the nationwide injunction blocking the DAPA policy “has far-reaching and irreparable humanitarian impact.”

“It bars approximately 4 million parents—who have lived in this country for years, would pass a background check, are not priorities for removal, and have ‘a son or daughter who is a U.S. citizen or lawful permanent resident,'—from requesting deferred action under the guidance and receiving authorization to work lawfully,” Verrilli said. “In so doing, it has a profound effect not only on those parents but also on their children.”

The solicitor general cited a study estimating that there are 6.3 million children who live in a household with a DAPA-eligible mother or father, and of those, 5.5 million are U.S. citizens.

And Verrilli added that although the states did not challenge the administration’s 2012 Deferred Action for Childhood Arrivals (DACA) guidance on providing similar treatment to undocumented immigrants who arrived as children, the 5th Circuit court’s “expansive reasoning places a cloud over the deferred action accorded to more than 600,000 people under that policy, all of whom came here as children and many of whom have never known another home.”

Texas and the 26 other states had urged the high court not to take up the case (and had sought to slow down the briefing to push the case from possible consideration in the court’s current term), but the justices had signaled they were likely to grant review.

Texas told the court that Obama was being especially candid when, shortly after the secretary of the Department of Homeland Security issued the DAPA guidance last year, the president said, “I just took an action to change the law.”

DAPA will directly impose substantial costs on the states associated with issuing additional driver’s licenses, Texas said, and it will also require additional spending on health care, law enforcement, and education.

“Texas ... spends over $9,000 annually to educate each unauthorized alien who attends public school—as required by Plyler v. Doe,” the state said in reference to the landmark 1982 decision that public schools must educate undocumented children.

“In a single year, Texas spent almost $60 million on education costs stemming from unlawful immigration,” the state told the court.

The case, United States v. Texas (No. 15-674), is expected to be argued in April and decided by late June.

A version of this news article first appeared in The School Law Blog.

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