Supreme Court Deadlocks on DAPA: Program to Remain Blocked For Now, But Longer Term Fate Will Be Determined By Presidential Election

On June 23, 2016, the United States Supreme Court heard announced that it had deadlocked  in United States v. Texas, the case which will decide whether the Deferred Action for Parental Accountability (DAPA) and the expansions of the Deferred Action for Childhood Arrivals (DACA) program.

The tied vote means that the lower court decision remains in place

The decision of the Fifth Circuit Court of Appeals blocking the implementation of these programs remains in effect.  The earlier version of the DACA program, announced in 2012, has not been blocked and remains in operation.

 Who were the blocked programs going to benefit?

DAPA would have allowed a grant of deferred action and a work permit for parents of U.S. citizens or lawful permanent residents if they (1) have resided in the U.S. since at least January 1, 2010; (2) have a U.S. citizen or lawful permanent resident son or daughter; and (3) do not have disqualifying crimes and are not otherwise high enforcement priorities.

Expanded DACA would have allowed a grant of deferred action and a work permit for applicants if they (1) entered the U.S. before turning 16, (2) have resided in the U.S. since at least January 1, 2010, (3) graduated from high school or obtained a GED, or are actively pursuing their high school education or its equivalent in school, (4) have not had any disqualifying criminal offense.

What does this mean in the short term?

Because there was no majority opinion, there is no precedent decision and the lower court’s ruling which blocked the program remains in force.  The programs cannot be implemented in the short term.

What does this mean in the long term?

It is important to note if the next President wanted to implement this program or something similar, it is very likely that DAPA would be implemented in the coming years.

First, states or other parties supportive of DAPA would bring lawsuits in different circuits (or the new President could implement a new very similar program which is not subject to the injunction and force opponents to seek another injunction).  Those cases would be appealed up to the Supreme Court again.  In the meantime, the new President would have nominated a ninth justice to the Supreme Court.  Presumably, that justice would be inclined to vote in favor of the legality of the program.  Therefore, when the new lawsuits got to the Supreme Court, the program would win on a 5-4 vote and would be implemented.  On the other hand, if the next President is not a supporter of DAPA, the program would be dead following the 4-4 decision.

The bottom line is that the Presidential election will almost certainly determine whether DAPA or a similar program is implemented.