Is DAPA Dead?

Today, the Fifth Circuit will hear oral arguments in the ongoing litigation over President Obama’s executive actions on immigration. The arguments today, and the Court’s subsequent decision, will address the federal government’s challenge to an injunction issued several moths ago by Texas District Court Judge Andrew Hanen.

If the federal government prevails, the Department of Homeland Security will be able to resume implementation of DAPA (Deferred Action for Parental Accountability) and expanded DACA (Deferred Action for Childhood Arrivals). If the twenty-six plaintiff states prevail, the programs will remain stalled.

Two judges in today’s three-judge lineup served on an earlier panel that refused to stay the lower court’s injunction while the present appeal is pending. That panel held that the federal government failed to make a sufficiently strong argument that the states lack standing. In other words, the Court held that the suing states probably met their burden of proving a concrete injury by showing that it would be costly for Texas to issue driver’s licenses to DAPA recipients. This finding was enough for the Court to refuse to stay the injunction.

We expect that these judges who, just weeks ago, refused to stay the injunction will again rule against DAPA and uphold the injunction for the duration of the litigation. This means that the United States Supreme Court will likely hear the case, following an appeal by the federal government. In this case, we likely won’t have a decision until the summer of 2016. Stay tuned!