On June 23, 2016, the U.S. Supreme Court issued a short order in the United States v.Texas case, affirming the judgment in the Fifth Circuit by a vote of four to four. Because the eight justices of the Supreme Court were equally split, the undocumented parents of U.S citizens and permanent residents, as well as the expanded group of people who arrived in the U.S. as children, are blocked from getting the relief of deferred action and work authorization. The Supreme Court deadlock is a terrible blow to as many as five million immigrants and to the entire nation. It is truly heartbreaking, as President Obama said. Millions of hard-working parents are unable to get work authorization or have relief from deportation. Others who came to the U.S. as youngsters are also unable to get permission to work and are subject to exploitation by unscrupulous employers. Most have lived in the U.S. for many years, and have strong ties to their communities. While the Supreme Court decision did not create any legal precedent, it has stopped President Obama’s executive action from going forward.

President Obama’s proposed program, DAPA (Deferred Action for Parents of Americans and Permanent Residents) would have spared from deportation and provided work authorization for the undocumented parents of U.S. citizens and permanent residents.   Additionally, it would have expanded the group of people eligible for DACA (Deferred Action for Childhood Arrivals), who had entered the U.S. prior to reaching the age of 16. The expanded DACA would have included applicants over 31 years of age, and changed the date of entry requirement from June 15, 2007 to January 1, 2010.

The legal basis for President Obama’s executive action can be found in the the U.S. Constitution, the Immigration and Nationality Act (INA), other federal statutes, federal regulations, and Supreme Court case law.

Congress has delegated to DHS the authority to set national immigration enforcement policies and priorities, 6 U.S.C. 202(5) and to issue regulations to carry out their responsibilities, 8 USC 1103(a)(3). Congress has also made clear that DHS is to prioritize removing those who have committed serious crimes, Department of Homeland Security Appropriations Act, Pub.L.No. 114-4, 129 Stat. 39, 43 (2015). Through the DACA and DAPA programs, those with clean records and who are not an enforcement priority, could come out of the shadows, submit to background checks, pay fees, apply for work authorization and be counted. Thus, they would be working on the books and paying taxes on the income they earn. Additionally, President Obama’s proposed measures would keep families together, as one of the main purposes of the Immigration and Nationality Act (INA) is to keep families united.

Deferred action is a form of prosecutorial discretion, which is granted on a case-by-base basis. Deferred action only means that the government has agreed not to deport you, for a certain period of time. It is not permanent residency, and does not create a path to permanent residency or to citizenship. The federal government’s decision not to prosecute or enforce the immigration laws, is generally considered to be within DHS’s absolute discretion. Previously the Attorney General, and now DHS, has broad discretion to decide whether to commence removal or deportation proceedings, adjudicate cases, and execute removal orders, and individuals have no private right to challenge these decisions in court. Reno v. American Arab Anti-Discrimination Committee, et al., 119 S.Ct. 936 (1999).

The Fifth Circuit decision, which stands because of the Supreme Court’s impasse, allows individual states to block federal immigration policy. The Executive branch’s authority over immigration, as over foreign relations, and a uniform rule of naturalization, has long been considered to preempt individual state action. Of course, each individual state cannot have its own immigration policy, which is why immigration has always been considered a federal matter. See, Arizona v. U.S., 132 S.Ct. 2492 (2012).