On June 23, 2016, the eight justices of the Supreme Court failed to break a tie in its consideration of U.S. v Texas, a case addressing the power of the President to grant work authorization and temporary reprieves from deportation to millions of undocumented individuals. Specifically, President Obama, through his announcement of the DAPA program in late 2014, attempted to confer such benefits on a specific population — namely, individuals that were in the United States unlawfully but nevertheless: (1) had no serious criminal records; (2) were not recent arrivals; and (3) were parents of U.S. citizens or permanent residents.
A federal district judge in Texas previously decided that President Obama was operating beyond the scope of his powers in trying to do just this, and permanently halted the DAPA program from going into effect. After months of appeals and litigation, the district court opinion reached the High Court. Today’s decision, while creating no legal precedent because of the 4-4 tie, effectively keeps the DAPA program from being enacted during President Obama’s tenure.
While this result is deeply disappointing to millions of undocumented individuals, and advocates such as myself, the fight is not yet over. Surely this year’s election, and the resulting selection of a ninth Supreme Court Justice, is now even more important to resolving an issue that affects the lives of so many of our friends and neighbors.
While less noteworthy than Texas, the Supreme Court did issue a decision today which will assist non-U.S. citizens in removal proceedings for criminal convictions. While not breaking any new legal ground, the Court in Mathis reiterated that in both the federal sentencing and the immigration context, judges must focus only on the “elements” of a criminal offense, and not the particular facts of a defendant’s conduct. The Mathis decision runs contrary to the position of the government, which advocated for a rule allowing judges greater leeway to consult underlying criminal paperwork in determining what offense a criminal defendant was convicted of. The takeaway is that non-U.S. citizens in removal proceedings will have an improved ability to challenge their removal from the United States.