The DAPA and expanded DACA programs, which are part of President Obama's “immigration accountability executive action," have been challenged by the Republicans and conservatives. Twenty six (26) states filed a lawsuit challenging these executive programs.
On February 16, 2015, a federal district court in Texas entered a preliminary nationwide injunction against the implementation of these programs. The injunction was upheld by a divided Fifth U.S. Circuit Court of Appeals in New Orleans on November 9, 2015. The administration promptly appealed this decision to the U.S. Supreme Court. Considering the scope and importance of this case, the Supreme Court will likely grant certiorari to hear the case.
A Matter of Federal Authority
The Administration's rationale is that, with only limited resources and funding, it is not possible to remove the estimated 11 million of unlawful immigrants from the United States. As the executive branch, it has legal authority to use discretion to prioritize deportation of criminals, recent border crossers, national security threats, and other repeat immigration offenders.
For others who don't pose danger to society and have strong family ties, the administration has plans to defer their deportation, bring them out of the shadow, process and register them in the system, and also grant them permission to work.
A Fight of Semantics
It is Always About Money
Financially, the Obama Administration argues that the States have no legal obligation to provide benefits to individuals in deferred action status. Texas could choose to stop granting temporary driver's licences to these individuals.
The Administration also argues that, if the States' economic argument was to stand, it would lead to other similar lawsuits. For example, if a state voluntarily decides to adopt the definition of "adjusted gross income" created by the IRS, the state could then sue the federal government for economic loss if it's revenues decreased as a result of a change in the calculation of "adjusted gross income" by IRS. Although such an argument is a bit far-fetched, it works as a reminder to the Supreme Court that its decision could open up a floodgate of lawsuits against federal agency actions.
Notice and Comment
Under the U.S. Constitution, the federal government has very broad power over the administration of immigration laws. The U.S. Supreme Court will be unlikely to change this long-standing authority in its decision. On the other hand, the Supreme Court may take issue with the Administration's failure to use the notice-and-comment rulemaking process to implement the new executive action programs. Under the APA, government agencies are usually obligated to publish any proposed rules and regulations in the Federal Register and allow a period of time for the public to provide written feedback and comments. There is an exception: the APA exempts from notice-and-comment all “general statements of policy." According to Obama Administration, its executive action programs fall under this exception, and hence the States' lawsuit must be dismissed. How strong this argument is depends on what constitutes "general statements of policy". As many Supreme Court decisions hinge on the meaning of a single word or phrase, the outcome of this important case remains unclear.