DAPA – Is it Dead?

The short answer is no – not yet.

In case you have yet to hear, this past week the Fifth Circuit Court of Appeals denied the Obama Administration’s request for a stay pending appeal.  Many news organizations have reported this as the death of DAPA.  It is not, at least not yet.

So what happened?

To understand what happened, you first have to understand where we are at in the lawsuit.  Earlier this year Judge Hanen, a Federal District Court judge in Texas, issued an injunction (order) prohibiting DAPA from going forward.  In response, the Obama Administration appealed his decision to the Fifth Circuit Court of Appeals and asked that Judge Hanen’s injunction be stayed (put on hold) until the appeal was decided.  In response to the request for a stay, a three judge panel for the Fifth Circuit Court of Appeals denied the request to put Judge Hanen’s orders on hold.  This is all that has happened at this point in time.  It does not mean that the appeal has been decided – just that the injunction is not going to be lifted.

So where do we go from here?

Following the Fifth Circuit’s denial of the Obama Administration’s stay request, the Obama Administration announced that it would not seek review by the U.S. Supreme Court.  Instead, it is focusing its efforts on its appeal.  So we simply have to wait and see what happens with the appeal.  Regardless of who wins – this case is most likely bound for the U.S. Supreme Court.  This means that it is unlikely that we get a final decision on if DAPA will proceed or not until some point in time in 2016.

So why did the Obama Administration lose before Judge Hanen?

There are a number of arguments floating out there as to why we are where we are at in this case.  Many argue that we are only where we are at because the lawyers for Texas did a great job in finding the right District Court judge before whom to bring the case, and then got lucky with their assigned judges before the Fifth Circuit Court of Appeals on the stay issue.  Although this is true, DAPA opponents do have some valid legal arguments.

At the heart of lawsuit, when you cut through all the political rhetoric and hype, is the claim that the Obama Administration’s DAPA program violates the Administrative Procedures Act (“APA”) because it was not properly published in the Federal Register.  It should be noted that a number of very smart individuals pointed this issue out as soon as the program was announced and encouraged the Obama Administration to seek emergency publication so that the program could go forward in May of 2015 – yes there was time to do it.  However, the Obama Administration staked out the position that DAPA was nothing but a policy change and thus did not need to be published in the Federal Register.  So at least from my point of view – this is the fight that will determine the victor in this case.

So what is does the future bring?

To be frank, the future of DAPA is unclear.  There are a number of strong arguments to be made on both sides – and only time will tell what side will win.  Even if the Obama Administration loses for having failed to publish in the Federal Register DAPA would still not be dead – the Obama Administration would only have to eat a bit of crow and publish.  Regardless of who wins, one thing is for certain.  Immigration reform needs to happen – and it needs to happen now.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Immigration Attorney, Matthew L. White at  480.461.5304,  log on to udallshumway.com, or contact an attorney in your area.