U.S. v. Texas: Cert Petition Filed by U.S. Justice Dept.

U.S. Justice Department Asks Supreme Court to Review Fifth Circuit Court of Appeals Decision

NOVEMBER 20, 2015  

On November 20, 2015, the U.S. Department of Justice (DOJ) filed a request, known as petition for a writ of certiorari, with the U.S. Supreme Court, asking that the Court review the Fifth Circuit Court of Appeals’ decision to uphold a nationwide injunction that has blocked the implementation of President Obama’s two major immigration initiatives. The petition was filed on the one-year anniversary of the announcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) initiatives, which were temporarily blocked by a district court over nine months ago.

In its request to the Supreme Court, DOJ asks the Court to consider three questions:

  1. Whether a state has the legal right to challenge the president’s actions based on its decision to subsidize certain state benefits to those who would be eligible for the DAPA and expanded DACA initiatives.
  2. Whether the DAPA and expanded DACA initiatives are in accordance with federal immigration law.
  3. Whether the government was required to follow notice-and-comment procedures to establish the DAPA and expanded DACA initiatives.

The case is one of national significance because over five million immigrants stand to benefit from DAPA and expanded DACA, which would provide them with temporary protection from being deported and the opportunity to get work authorization.

The DOJ argues that allowing states to bring a lawsuit whenever they have a policy conflict with the federal government would frustrate the ability of the federal government to do its job in enforcing the nation’s immigration laws, an area of law that the Supreme Court has made clear is entrusted to the federal government alone. The DOJ further argues that the DAPA and expanded DACA programs are in full compliance with federal law. The court papers point out that the federal government has historically exercised the ability to decide whom to prioritize for removal from the country and that it can take into account longstanding and close connections to the United States, including length of residence as well as family ties—for instance, whether an individual has U.S. citizen or lawful resident children. Finally, the federal government argues that the policy establishing DAPA and expanded DACA is exempt from notice-and-comment procedures.

What happens next?

Now that the DOJ has requested that the Supreme Court take on the case, the 26 states that sued the federal government will have the opportunity to argue that the Court should not hear the case and instead leave the nationwide injunction in place. The Supreme Court will consider both sides and decide whether it will hear the case in the coming months. Meanwhile, supporters for both sides will have the opportunity to weigh in with the Court by submitting friend-of-the-court briefs (also known as amicus briefs).