{4:22 minutes to read} If a new Supreme Court Justice isn’t appointed while President Obama remains in office, his DAPA plan might not come to fruition.

In November 2014, President Obama announced his Deferred Action for Parents of Americans and lawful permanent residents, known as DAPA. He also announced the extension of the DACA program—Deferred Action for Childhood Arrivals—which had already been in place but would be expanded to incorporate more people.

There are arguably four million people that would qualify under either one of these two new programs that Obama issued through an executive order, meaning he bypassed Congressional approval for it. It didn’t come into law.

DACA has been in place since Obama issued the executive order in June 2010. He was trying to expand DACA and also pass DAPA. DAPA is essentially for parents from other countries who are:

— undocumented;

— living in the U.S.; and

— whose children are now U.S. citizens or lawful permanent residents.

What that means is that those parents would get what’s called Prosecutorial Discretion which would protect them from deportation unless they committed some sort of crime that made them deportable. It would also allow them to apply for employment authorization. They would be able to come out of the shadows and register without risk of being deported, which minimizes the number of people that are deportable.

It also increases by four million people—which is a huge amount of people—the potential workforce. This increase would literally alter the face of how a lot of businesses work because the hospitality, agriculture, and manufacturing industries are fueled by a lot of undocumented labor, off the books.

It’s a game-changing situation. DAPA is not in place because it was challenged in the courts by the state of Texas.There’s a lot of gray area in terms of how much authority the President has to make something like this happen and in terms of what a state can do to block something that is essentially federal. The original court sided in favor of Texas, and the United States government appealed in Appeals Court in New Orleans. They were denied their appeal, and so the U.S. government took this case to the Supreme Court (United States v. Texas, No. 15-674).

States’ rights versus federal rights is a monumental issue. It’s about federalism. It’s about division of powers. It’s about how far the executive powers go, which actions or initiatives are required to pass through Congress and which aren’t. It’s also a reflection of how divided the United States is on immigration and the issue of what to do with people who are undocumented.

Because of the Supreme Court vacancy left by the death of Antonin Scalia, if the issue were to be decided by the eight sitting justices, there could be a four-four deadlock, which means the Appeals Court ruling would stand. That means no new precedent would be established that would vacate the previous decisions from the lower courts—the DAPA and the DACA expansion would essentially be quashed unless a new executive action was issued.

This case is extremely important on many levels, none more so than the real-life impact it will have on four million hardworking families whose lives would change for the better if the Supreme Court overruled the lower courts’ decisions.


Steve Maggi, Esq.Steve Maggi, Esq.
SMA Law Firm
U.S. Immigration & Consular Law