Carrie Salls Jun. 16, 2016, 11:30am


WASHINGTON – Cornell Law School professor Stephen Yale-Loehr believes the upcoming U.S. Supreme Court ruling in a landmark case that will dictate whether President Barack Obama can bypass Congress to defer deportations and grant temporary work permits for millions of undocumented parents will be important for Texas, no matter which way the high court rules.

Obama’s program is called the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

“If the court rules in favor of the administration, several hundred thousand people in Texas will be able to apply for temporary work permits,” Yale-Loehr told the SE Texas Record. “If the court ties 4-4 or rules against the administration, the lower court order in Texas barring the DAPA program from going forward remains in place.”

In addition to deciding the legality of the DAPA program, Yale-Loehr said United States v. Texas could help determine whether and under which circumstances states can sue the federal government and have broader implication on executive actions in general.

“I doubt the Supreme Court will rule on the general authority of executive actions and the balance of power between the President and Congress,” Yale-Loehr said. “But people involved in other controversies, such as whether Texas can prevent Syrian refugees from resettling in Texas, will certainly review the decision in United States v. Texas closely to try to determine how future legal challenges in those areas might fare.”

Since immigration cases usually involve sovereignty issues, Yale-Loehr said courts generally have granted the executive branch wide latitude in implementing immigration policy.

However, he said “the question here is whether the president exceeded that broad power by not simply deferring the deportations of several million undocumented immigrants but also granting them work permits.”

Yale-Loehr said the Supreme Court normally issues its decisions on Mondays. As a result, the ruling on United States v. Texas could come on June 20 or June 27. However, Yale-Loehr said the court may choose to schedule additional decision days before it adjourns at the end of the month.

Texas and 25 other states file a lawsuit in the U.S. District Court for the Southern District of Texas in December 2014 to block expansion of DAPA and Deferred Action for Childhood Arrivals (DACA). The states alleged in that lawsuit that enforcement of expanded DACA and DAPA programs would violate federal laws and the Constitution.

Specifically, the states claim expansion of the programs would violate a clause of the Constitution that states that the president is required to “take care that the laws be faithfully executed and that expansion would violate the Administrative Procedures Act because the programs are random and do not comply with existing immigration laws.

The states also allege that the federal government did not follow technical procedural requirements under the Administrative Procedures Act, including provisions that require notification of and establishment of a comment period before it announced that DACA and DAPA would be expanded.

Yale-Loehr is a professor of immigration law practice at Cornell and is the co-author of Immigration Law & Procedure Treatise.

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