Executive Action Update: FAQ on the Fifth (5th) Circuit Ruling on the DAPA & DACA Injunction

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What just happened in the 5th Circuit?

The U.S. Court of Appeals formally upheld Judge Hanen’s injunction prohibiting the administration for implementing DAPA & DACA.  The injunction prohibited the administration from implementing DAPA and expanded DACA until the litigation brought by Texas and twenty six other states was resolved.  Injunctions are sought to preserve the status quo while the legality or proposed actions is resolved.  Judge Hanen ruled that Texas presented evidence of the possible injury if DAPA or DACA went forward and that Texas was likely to succeed in challenging DAPA and expanded DACA.  On Monday, November 9, the Fifth Circuit, in a 2-1 decision refused to lift Judge Hanen’s injunction and allow the administration to proceed with DAPA and expanded DACA.

What does this mean for DAPA and expanded DACA?

Both programs are on hold until the injunction is lifted and the administration can not accept applications for DAPA or expanded DACA.

So, are DAPA and expanded DACA dead?

No.  The administration announced on Tuesday that it intended to ask the Supreme Court to take its appeal of the injunction.  The Supreme Court could vacate the injunction, clearing the way for the administration to proceed with DAPA and expanded DACA.

Must the Supreme Court take the case?  If not, what are the chances that they take it?

No, the Supreme Court does not have to take the case.  By not taking the case, the Court would be letting the 5th Circuit’s decision stand.  However, many observers believe that, given the high political importance of the case and the importance of the decision about the limits of executive power, the Supreme Court will take the case.

When might that happen?

The Supreme Court sits and hears cases and issues opinions during a “term,” which lasts from October to June.  In order to get the case accepted by the Court for this term, briefed by the parties, argued and decided, the Justice Department will need to file with the Supreme Court in a matter of weeks.  Generally, to be heard this term, the case would need to be accepted by the court no later than December.  If the court agrees to hear the case this term, that means that a decision would come no later than June 2016.

What happens if the Supreme Court vacates the injunction?

The administration would be free to proceed with implementing DAPA and expanded DACA.  The administration has stated that they have done the internal planning and preparation to roll out the program shortly after the Supreme Court decision.

What happens if the Supreme Court upholds the injunction?

HRCThen DAPA and expanded DACA are, if not dead, barely on life support.  It means that DAPA and expanded DACA will nDJTot take effect during President Obama’s presidency, which ends in January 2017.  The next President may not be interested in continuing the effort to save DAPA and expanded DACA or may even be outright hostile to it.

What should I do?

If the Supreme Court takes the case, DAPA and expanded DACA, and immigration in general, are likely to be dominant issues in the Presidential campaign.  You should make your voice heard in the campaign.  Even though non-citizens can not vote, it has been non-citizens who have pushed this issue forward.  Political activism does not require U.S. citizenship.  For those people around you who are eligible to become citizens, you should encourage them to do so and to vote.  To your friends and family who are citizens, take the time to explain the importance of the issue to you.

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