On June 23, 2016 the Supreme Court issued a 4-4 vote decision in the United States v. Texas, the case challenging expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This 4-4 impasse means that the Fifth Circuit’s decision upholding the preliminary injunction against these initiatives will stand. 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.
The Obama administration has left a handful of options to pursue following the decision in United States v. Texas:
1. To petition the Justices for a rehearing on the case, followed up by a request that the rehearing be postponed until a ninth justice is confirmed;
2. The case is remanded to the U.S. District Court for the Southern District of Texas for a trail on the merits. This option is not feasible since the Court will probably issue a permanent injunction rather than sustain the current preliminary injunction.
3. If the U.S. District Court for the Southern District of Texas passes a permanent injunction or affirms the preliminary injunction de novo, the administration can appeal it, for “round two” before the U.S. Court of Appeals for the Fifth Circuit. Nevertheless, it is important to note that last November the U.S. Court of Appeals for the Fifth Circuit sided with the lower court.
4. The Administration could pursue an aggressive, albeit unlikely, strategy and attempt to implement the blocked extended DACA and DAPA program in parts of the country that are not covered by the Fifth Circuit.
5. The Administration could try a re-launch of the programs after going through the lengthy process of issuing a proposed rule, seeking public comment and then releasing a final rule. The entire rulemaking process will take from six months to a year at best. This option was in fact discussed and suggested by the District Court decision last year.
Since both the Supreme Court and Congress will be going into recess for the summer term, the administration will need to entertain any possible option in September.