Necesitamos Nueve: The Adverse Effects on the Immigration Community

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

The appointment of Merrick Garland to the United States Supreme Court was obstructed over the last 310 days of President Obama’s presidency.[1] Despite the nomination, the Senate has refused to move forward with the proceedings on Judge Garland. This has left a crushing vacancy in the seat of the late Justice Antonin Scalia. While the Senate has put a hold on fulfilling its duties, the remaining eight Justices of the Supreme Court have continued its pursuit of “equal justice under law.”[2] Unfortunately, with only eight Justices, many important cases are being decided by a Supreme Court that is unable to provide a declarative ruling. One such case was decided on June 23, 2016. In a 4-4 deadlock, the Supreme Court was forced to issue the following one sentence opinion: “[t]he judgement is affirmed by an equally divided Court.”[3] Those nine words have significantly affected millions of people in the United States. That fact must be addressed.

Deferred Action: Now and the Promise of Tomorrow

Deferred Actions for Childhood Arrivals, also known as “DACA”, was a program first announced on June 15, 2012.[4] DACA utilizes prosecutorial discretion to defer removal actions against a category of individuals. Upon meeting several requirements including a background check, an individual may be granted work authorization and deferred action for two years, subject to renewal.[5] The Department of Homeland Security only has enough funds to deport less than 400,000 undocumented immigrants each year.[6] The DACA program was announced as part of the initiative to prioritize deporting individuals who pose a risk to public safety first.[7] Nearly half a million undocumented immigrants applied for DACA in 2013 alone.[8] With the evident success of the program, the administration looked for ways to expand the deferred action to immigrants excluded from DACA 2012.

On November 20, 2014, President Obama announced a number of executive actions that furthered the goal of prioritizing deporting felons, not families.[9] The announcement introduced the expansion of the DACA and the establishment of the Deferred Action for Parents of Americans and Lawful Permanent Residents, also known as “DAPA.” These programs are projected to affect over 4 million undocumented immigrants and their families.[10] The DACA 2014 program expands DACA by broadening the group of individuals eligible for the benefits and extending the period of time deferred from two to three years.[11] Further, subject to a background check and other requirements, the DAPA program allows parents of U.S. citizens and lawful permanent residents to apply for deferred action and employment authorization for a period of three years.[12] These programs, viewed together, promote the ideal that American immigration policy should be keeping families together, not reinforcing their fear that they can be torn apart.

Deferred Action: Halted Until Further Notice

The new and expanded programs were set to roll out on February 18, 2016. However, these plans came to an abrupt halt when the United States District Court for the Southern District of Texas issued a preliminary injunction against the execution of these programs.[13] Texas, along with twenty-five other states, filed a lawsuit to prevent DACA 2014 and DAPA from being enforced in any state.[14] The government immediately took action to try to continue with the initial plan, but all avenues were denied by the District Court judge. The government asked for the injunction to be lifted, and, alternatively, for the District Court to issue a partial stay that would only prevent the government from implementing DAPA in the state of Texas.[15] The order for preliminary injunction was then appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit, by a 2-1 decision, affirmed the District Court’s preliminary injunction of the implementation of the programs.[16] There were two main issues certified to the Supreme Court: standing and violation of the APA.


One of the main issues in U.S. v. Texas was whether Texas had standing to bring suit.[17] The Fifth Circuit noted that the state had the burden of showing an injury that was “concrete, particularized, and actual or imminent” to establish standing.[18] The state of Texas alleged a financial injury related to the issuances of driver’s licenses.[19] The state claimed they could prove standing because Texas would have to issue approximately 500,000 driver’s licenses to recipients of this program costing the state over $130 for each license.[20] Citing Massachusetts v. EPA,[21] the court noted “[w]hen a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.”[22] Both the District Court and the Fifth Circuit agreed the cost of issuing licenses to undocumented immigrants constituted an injury against Texas and provided standing.[23]

Violation of the Administrative Procedure Act (APA)

The states alleged a violation of the Administrative Procedure Act (APA) because the Executive Order did not go through the “proper procedures.”[24] The APA authorizes challenges to final agency action for which there is no other adequate remedy in a court.[25] Texas claimed that the government did not properly inform the public about the new programs through the notice and comment[26] requirements, whereas the government argued that these programs did not fall under the scope of the Administrative Procedure Act.[27] Under the APA, a rule is not required to go through the notice and comment procedures if it is an interpretive rule.[28] However, if the rule is substantive, the notice and comment procedures must be meticulously abided by.[29] The Circuit Court, after evaluating whether these programs were of the type Congress thought appropriate for public participation, decided the programs were substantive, not procedural.[30] Upon that determination, the Circuit Court found the government was in violation of the APA for not undergoing the notice and comments procedures required for those substantive programs.[31]

After finding that the states had standing to file the lawsuit and that the government was in violation of its duty to submit the programs to the public for notice and comments, the Circuit Court affirmed the preliminary injunction against the DACA expansion and DAPA programs.[32] The government then appealed the case to the Supreme Court.

An Equally Divided Court

An equally divided court can provide no answers. In a deadlock decision, the lower court’s decision is affirmed.[33] Since the other twenty-five states rallied behind the state of Texas, there were no other Circuit Court decisions in this case. Thus, the District Court’s preliminary injunction, affirmed by the Fifth Circuit, still stands and precludes the enforcement of DACA and DAPA from any state. The vacancy on the Court left the actual legal questions unanswered. In nine words, the Supreme Court struck down the execution of two programs that could help millions of people without providing any analysis on either end: “the judgement is affirmed by an equally divided court.”[34] That statement provided no analyses on the issues and provides the immigration community with no basis to move forward with. Not only is there uncertainty why the four justices agreed with the Fifth Circuit, but also why the other four justices did not. The legal community is left grappling for answers on whether Texas actually had standing to bring this case, or whether the APA even applied to these programs. Moving forward, the administration, and the future administration-elect, are unsure on how to proceed without a decision on what the downfall of these programs was.

On July 18, 2016, the government filed a petition for the case to be reheard once a ninth justice was on the Supreme Court.[35] If the Supreme Court allowed a rehearing it would prevent the Texas District Court from moving forward with proceedings on the merits. That petition was denied on October 3, 2016, and the case will now be sent back down to the District Court.[36] Based on the language in the District Court’s and Circuit Court’s decisions, it is safe to believe that the case will be brought to the Supreme Court once more.

Consequences of the Open Seat

Despite the legal consequences stemmed from the unanswered questions, there are basic policy consequences from the injunction on implementing these programs. First, the fear continues for immigrant families that they could be torn apart at any moment and that their stability in this country is always on shaky ground. The DAPA program would have benefited 3.7 million parents.[37] These parents would have better resources to provide for their families once granted the deferred action. Parents would also no longer be terrified, every moment of every day, of deportation, and being forced to leave their children with family members, foster homes, or to look after themselves. Most times when a parent is deported, the child will likely not see them again for several years.

Additionally, the DACA 2014 program would have provided more individuals with the financial stability that the DACA 2012 program has already afforded thousands of recipients.[38] The peace of mind and safety DACA 2014 and DAPA could have given these families is greatly understated. Deporting criminals, rather than families, must be a top priority for this and the next administration as this case proceeds through the judicial system.

There are also economic consequences to the nation as a whole while these programs are enjoined. Obama’s Council of Economic Advisors claim that by 2024 these programs would produce a .4% increase to the gross domestic product.[39] Additionally, they would decrease the federal deficit by $25 billion.[40] Allowing these undocumented immigrants work authorization, would lead to an increase in wages for American born workers, and an overall increase in state and federal tax revenue.[41] While these programs are on hold, the projected four million people are unable to work and the cost, not only to those families but to the American economy as a whole, is high.

What About the Other Twenty-Four?

Twenty-six states supported the filing the appeal of the Texas v. United States case. However, twenty-four states who were not part of this case are affected by the deadlock Supreme Court decision in United States v. Texas. The residents of these twenty-four states are prohibited from applying for DAPA and expanded DACA 2014, even though these states were not a part of the case. In August, a case was filed in New York challenging Texas’ ability to place a nationwide injunction on these programs.[42] The Plaintiff was granted a three year work permit in February under the expanded DACA program, but that was later reduced because of the Texas injunction—to two years as allowed by DACA 2012.[43] As the case proceeds on the merits through the Texas District Court, this case is the only hope for the other twenty-four states to take advantage of the benefits of these programs.


A court that cannot issue definitive decisions cannot provide equal justice under law. While the immigration system is hopeful that a new justice will be on the court by the time the case inevitably is re-appealed, there is still no excuse for allowing a deadlock decision. Unfortunately, the current justices have little to do about the Court’s current vacancy. The United States Congress has failed time and time again to implement immigration reform. The Restless administration decided to step in and provide programs that would help until Congress enacted a law. Yet, the Senate’s failure to do its job, by advising and consenting to the Executive’s Supreme Court nomination, has caused great ambiguity to the lives of millions of immigrants. While a decision in their favor would be preferable, any decision would at least allow these immigrants an idea of what their next steps should be. We need nine so that more injustices like this one do not occur. ¡Necesitamos Nueve!

[1] It is unlikely that the Senate will confirm President Obama’s nomination before the inauguration of President-elect Donald Trump.

[2] The enduring pursuit of the Court is etched into the marble gable of the Court itself—memorialized for eternity.

[3] U.S. v. Texas, 579 U.S. __ (2016).

[4] Consideration of Deferred Action for Childhood Arrivals (DACA), USCIS,

[5] You may request DACA if you: (1) were under the age of 31 as of June 15, 2012; (2) came to the United States before reaching your 16th birthday; (3) have continuously resided in the United States since June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS; (5) had no lawful status on June 15, 2012; (6) are currently in school, have graduated or obtained a certification of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard of Armed Forces of the United States; and (7) have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Id.

[6] Jennalee Beazley, How the Supreme Court May Change the Future of Undocumented Immigration in the United States v. Texas, Council on Hemispheric Affairs (2016),

[7] Janet Napolitano, Prosecutorial Prioritization, Brennan Center for Justice,

[8] Jens Manuel Krogstad & Ana Gonzalez-Barrera, If Original DACA Program is a Guide, Many Eligible Immigrants will Apply for Deportation Relief, Pew Research Center RSS (2014),

[9] Executive Actions on Immigration, USCIS,

[10] Jennalee Beazley, How the Supreme Court May Change the Future of Undocumented Immigration in the United States v. Texas, Council on Hemispheric Affairs (2016),

[11] Executive Actions on Immigration, USCIS,

[12] Executive Actions on Immigration, USCIS,

[13] Defending DAPA and Expanded DACA Before the Supreme Court: A Guide to United States v. Texas, American Immigration Council,

[14] Texas v. United States, 86 F. Supp. 3d 591 (S.D. Texas 2015).

[15] Defendant’s Emergency Expedited Mot. to Stay the Ct.’s February 16, 2015 Order Pending Appeal and Supp. Mem., Texas v. United States, 86 F. Supp. 3d 591 (S.D. Texas 2015), No: 1:14-cv-254.

[16] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[17] Id. at 151.

[18] Id. at 150.

[19] Id. at 152-153.

[20] Id. at 155.

[21] 549 U.S. 497, 518, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007).

[22] Texas v. United States, 809 F.3d 134, 151 (5th Cir. 2015).

[23] Texas v. United States, 86 F. Supp. 3d 591, 621 (S.D. Texas 2015); Texas v. United States, 809 F.3d 134, 153 (5th Cir. 2015).

[24] Id. at 177.

[25] 5 U.S.C.S. § 704.

[26] Notice and comment is a process for the public to comment on a proposed rule which the agency then responds to and frequently amends the rule based on those comments. 5 U.S.C.S. § 553.

[27] Texas v. United States, 809 F.3d at 149-150.

[28] Id. at 170-171.

[29] Id. at 171.

[30] Id. at 177.

[31] Id. at 193.

[32] Id.

[33] Maya Rhodan, This is What Happens When the Supreme Court is Tied, Time Magazine (2016),

[34] U.S. v. Texas, 579 U.S. __ (2016).

[35] Petition for Rehearing, U.S. v. Texas, 579 U.S. __ (2016), No. 15-674.

[36] Adam Liptak, Millions at Risk of deportation as Justices Refuse to Rehear Case, The New York Times (October 3, 2016),

[37] Jennalee Beazley, How the Supreme Court May Change the Future of Undocumented Immigration in the United States v. Texas, Council on Hemispheric Affairs (2016),

[38] Id.

[39] Jennalee Beazley, How the Supreme Court May Change the Future of Undocumented Immigration in the United States v. Texas, Council on Hemispheric Affairs (2016),

[40] Id.

[41] Id.

[42] Batalla Vidal v. Baran, Yale Law School, Worker and Immigrant Rights Advocacy Council,

[43] Id.


Up ↑

Skip to content