On November 20, 2014, Secretary of the Department of Human Services Jeh Johnson ordered the Citizenship and Immigration Services, the Immigration and Customs Enforcement, and Customs and Border Protection to implement the so-called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which bars deportation proceedings and awards benefits to four million individuals currently residing illegally in the United States. President Obama characterized the edict, which he had ordered, thusly: “I just took an action to change the law....”
Fearing the fallout from granting federal benefits—and associated state benefits—to four million illegal immigrants, twenty plus states sued alleging the order violates the Take Care Clause; conflicts with immigration law, the Immigration and Naturalization Act, e.g.; and violates the Administrative Procedure Act (APA). The States alleged a range of their injuries from the program, including the costs of providing: driver’s licenses, unemployment benefits, and benefits mandated by state law on proof of lawful residence. The States also sought a preliminary injunction halting implementation of the order, arguing that once applications for deferred action status started being granted, it would be difficult to “unscramble the egg.”
On February 16, 2015, the federal district court for the Southern District of Texas granted a Preliminary Injunction in a 123-page opinion that detailed the irreparable injuries that would be suffered by the States, held that the States were likely to prevail on the merits, and concluded that the order was not an act of prosecutorial discretion, but executive lawmaking. The United States appealed to the Fifth Circuit.
On March 24, 2015, the Fifth Circuit set an expedited briefing schedule. On May 11, 2015, MSLF filed its brief in support of the States. On May 26, 2015, the Fifth Circuit upheld the preliminary injunction granted by the Texas federal district court. On July 10, 2015, the Fifth Circuit heard oral arguments. On November 9, 2015, the Fifth Circuit upheld the district court’s decision, agreeing that the States have standing and are likely to succeed on the merits. On November 20, 2015, the United States filed a petition for writ
. On January 19, 2016, the Supreme Court granted the petition. On March 1, 2016, the United States filed its opening brief. On March 28, 2016, Texas filed its response brief. On April 4, 2016, MSLF filed an amicus curiae
brief in support of Texas. On April 18, 2016, the Court heard oral argument.