Skip to main content

DAPA, Obama, the Supreme Court, and Politics

By November 10, 2015No Comments

November 2014, after a stinging defeat at the polls, and with little left to lose in his political legacy, Obama announced a series of DHS policy memos that, when implemented, would rearrange his deportation priorities (after becoming the Deportation President with more than 2.5 million people deported), and create formalized system of Deferred Action to help long term resident undocumented people (the backbone of much of our service sector) to obtain work permits (DAPA).  Obama apparently preferred to do this policy changes by memo, arguing that they were not “substantive” changes to regulation, and thus did not need to go through the formal Administrative Procedures Act (APA) rulemaking processing (which takes about 6 months, or less, done properly).

State Attorney Generals, led by Texas promptly brought suit, under a series of novel theories, arguing that this was no mere policy change, but rather a substantive fix with massive benefits and enormous costs to the states. Much of that was pure hyperbole, but when you can pick the right judge and luck into the right appeals court, even hyperbole can stop a President.  The District Court stopped Obama’s DAPA program, and the 5th Circuit Court of Appeals, for the second time, upheld that decision.  Of course, to anyone who understood the issues, and knew the judges, this most recent decision is no surprise at all.  We knew that this case was eventually headed to the Supreme Court.  The only question was whether the Supreme Court would hear this case in the 2016 term and decide it right in the middle of the Presidential election, or whether it would deferred until the 2017 term.  
It looks like the 5th Circuit has given Obama enough time to file his case with the Supreme Court.  And, that the Supreme Court will likely take this case, given the novel legal theories espoused by the 5th Circuit in upholding the injunction stopping DAPA.  And, when they issue a decision on this case, likely in late June 2016, the GOP convention will likely have just ended and the Democratic Convention will just be starting.  Can you imagine a better time to start processing the DAPA cases?
As for me, I believe that the Supreme Court will overturn the 5th Circuit, likely unanimously, or in a 8-1 decision. The issues  are very clear here. Can a state create an injury, claim that injury was caused by an executive branch policy, and then sue to stop that policy saying they were injured.  That among other novel legal theories will be on the Supreme Court’s plate.
All that said, Obama, could tomorrow, publish a proposed or emergency regulation in the Federal Register, and within six months DAPA would be in effect, and this lawsuit would be moot.  You ask, Why would Obama not do that? Some argue that the 5th Circuit’s decision on the “substantive” changes in the DAPA memo (completely made up by the 5th Circuit) bars the administration from proceeding on rule making. I am not sure I agree.  I believe Obama could publish the proposed regulations and that would force the states to sue again in another matter.  After all, if he had published the DAPA regulation when the District Court created the injunction, we would have DAPA today.  The answer lies, clearly, in politics. Other than money, the answer is almost always politics.  Someone once said that I gave too much credit to Obama being Machiavellian.  The reality is, you do not need to be Machiavelli to see this unfolding. In the middle of a presidential election, when the GOP candidates are screaming and vilifying immigrants, the Democrats can come in with long faces and sadly explain to voting immigrant communities–See Obama tried, but those big, bad Republicans stopped us from helping you.  This is the standard Obama line, and he used it in 2008 and 2012, and it worked. Hillary will (and already has started) using it for 2016.  
The sad part is that the GOP, like Charlie Brown going to kick the football, falls into the trap every four years, because it refuses to ignore the eugenics, anti-population and anti-immigrants minority in the GOP and simply fix immigration law.  If the GOP would do this before the election, they, perhaps, could stop being the national minority party in presidential elections.  Given GOP politics at this time, don’t count on this happening.  
Finally, to those millions of immigrants out there would will eventually benefit from DAPA, and their employers (yes they all already are working and paying taxes)–Keep the faith. This is a fight we will eventually win. Until then keep evidence of your good moral character.  Keep paying your taxes.  Take good care of your children and spouses.  And wait for the Congress of the United States to finally catch up to the reality that without these workers, much of our service sector would collapse. 
 I wish we could just stop playing politics with peoples’ lives.  
Charles Kuck

Managing Partner