On November 20, 2014, the Secretary of the Department of Homeland Security (DHS) issued directives that are collectively known as “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA). These directives both identified longstanding immigration enforcement priorities and directed federal officials to exercise their discretion on a case-by-case basis to defer removal of certain parents of U.S. citizens or lawful permanent residents in order to remain consistent with those priorities in light of limited enforcement resources. Twenty-two states, four governors, and the Nevada Attorney General challenged the directives in the U.S. District Court for the Southern District of Texas, arguing that DAPA violates the Constitution’s Take Care Clause as well as the requirements of the Administrative Procedure Act. District Judge Andrew Hanen agreed with the State parties that the directives likely violate the requirement for notice-and-comment rulemaking and issued an injunction temporarily enjoining DHS from implementing DAPA.

The Obama Administration appealed to the U.S. Court of Appeals for the Fifth Circuit, and on April 13, 2015, CAC filed a friend-of-the-court brief in that court on behalf of a bipartisan group of former members of Congress, urging the court of appeals to lift the injunction and allow DAPA to proceed.

The brief argued that amici, as former members of Congress, recognize that the DHS directives at issue reflect priorities that were developed by Administrations representing both political parties and have been consistently endorsed by Congress on a bipartisan basis. They also know that Congress has delegated significant discretion to the President to enforce the nation’s immigration laws and that these DHS directives do not change current immigration law but instead implement existing laws over which the President has discretion. Additionally, the DHS directives create no new legal rights and act as a “general policy” of enforcement priority and criteria for the exercise of case-by-case discretion, for which the Administrative Procedure Act does not require notice-and-comment rulemaking.

On May 26, 2015, following an unusual oral argument session on the issue on April 17, the Fifth Circuit, by a 2-1 vote, denied the government’s motion to stay the district court’s decision pending appeal. The Fifth Circuit’s ruling, which meant that implementation of DAPA continued to be blocked, misunderstood the President’s immigration initiative and the role of the President in enforcing the nation’s immigration laws. The Fifth Circuit heard oral argument on the merits of the case on July 10, 2015.

On November 9, 2015, the Fifth Circuit, in a 2-1 decision, affirmed the district court’s order granting a preliminary injunction. The Administration filed a petition for a writ of certiorari with the Supreme Court on November 20, 2015.

On November 30, 2015, CAC filed a friend-of-the-court brief at the petition stage in the Supreme Court, again on behalf of a bipartisan group of former members of Congress, urging the Court to grant review. Our brief argued that the DHS directives at issue reflect priorities that were developed by Administrations representing both political parties and have been consistently endorsed by Congress on a bipartisan basis. It also argued that the chosen means of implementing those priorities—case-by-case exercise of discretion to defer removal—has been long employed by Administrations of both parties and repeatedly endorsed by Congress. On January 19, 2016, as CAC had urged, the Supreme Court agreed to review the case.

On March 8, 2016, CAC filed a friend-of-the-court brief on the merits in the Supreme Court, once again on behalf of a bipartisan group of former members of Congress. Expanding on the arguments made in our petition-stage brief, our merits-stage brief argued that the DHS directives are a lawful exercise of executive discretion consistent with the nation’s immigration laws and an important means by which the President fulfills his constitutional responsibility to “take Care that the Laws be faithfully executed.”

With Justice Antonin Scalia’s passing on February 13, 2016, the now eight-Justice Court heard oral argument on April 18, 2016. On June 23, 2016, an equally divided (4-4) Court issued a per curiam order, affirming the judgment of the Fifth Circuit. Because the Fifth Circuit’s judgment was affirmed, the injunction blocking the 2014 executive action from going into effect remains in place. On July 18, 2016, the Obama Administration submitted a petition to the Supreme Court requesting that the Court rehear the case when it has a full complement of nine justices.

On October 3, 2016, the Court denied the Obama Administration’s petition for rehearing.