On January 19, 2016, the Supreme Court granted certiorari, agreeing to take the case and review the Fifth Circuit’s decision. Oral arguments are set for this Monday, April 18, 2016, and the Court will likely issue a decision in June. The future of four million undocumented immigrants in the United States rests on the ill-defined distinction between a policy statement and a substantive rule. Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) have been on hold since a district court in Texas issued a preliminary injunction in the case in February 2015. A Supreme Court decision could clear the way for the initiatives to go forward as early as June of 2016, or affirm the Fifth Circuit decision, upholding the preliminary injunction and not allow DACA and DAPA to move forward.

The question at hand is whether President Obama was authorized to provide deportation protection to millions of undocumented immigrants via the DAPA and DACA actions he took in 2014. This Monday, the high court will hear oral arguments in Texas’ challenge to the White House administration’s executive action to defer deportation of undocumented immigrants who are parents of American citizens. However, the Supreme Court will first have to consider whether the states have standing, or legal capacity, to bring the lawsuit. In addition, the Court will consider whether expanded DACA and DAPA are lawful or whether they violate the Constitution or the Administrative Procedure Act (APA). More specifically, the four issues before the Supreme Court, as designated by the Court, are:

1. Do any of the states have standing (legal capacity) to bring the suit?


“Whether a state that voluntarily provides a subsidy to all ‘aliens’ with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Guidance because it will lead to more ‘aliens’ having deferred action;”


2. Do expanded DACA and DAPA violate federal law?



“[W]hether the guidance is arbitrary and capricious or otherwise not in accordance with law;”


3. Did the White House Administration comply with the procedures of APA when it announced the expansion of DACA and DAPA?



“[W]hether the guidance was subject to the APA’s notice-and-comment procedures;” and


4. Do expanded DACA and DAPA violate the United States Constitution?


“[W]hether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.”

According to dueling amicus briefs by administrative law scholars, the SCOTUS’ decision boils down to whether Obama’s Nov. 20, 2014 action was merely a policy announcement that codified enforcement priorities for Department of Homeland Security staff, or was instead a substantive rule that granted new rights to a substantially large group of people. If Obama’s action was a policy announcement, as argued by 12 eminent administrative law professors in an amicus brief backing the administration’s actions– then under the Administrative Procedures Act, the executive branch had the right to take unilateral action. However, if Obama’s action was an executive action that amounted to a substantive new rule on immigration – as two academics and the conservative Judicial Education Project contend in a new amicus brief for Texas – then DACA and DAPA should have been subjected to the Administrative Procedures Act’s “notice-and-comment requirements”. The Administrative Procedure Act, 5 U.S.C. 553, establishes the procedural requirements for notice-and-comment rulemaking. It requires that an agency generally publish notice and provide opportunity for public comment before adopting a rule.

The 26-state challenge to the Obama administration’s immigration policy, scheduled for Supreme Court argument this Monday is expected to be full of rhetoric about the separation of powers and implications for the November 2016 elections. A recent analysis from the Migration Policy Institute estimates that 3.7 million undocumented immigrants could qualify for protection from removal under the two initiatives. The proceedings will mark the now eight-member panel of justice’s incursion into the long heated debate on immigration policy and is expected to actually render a decision in the case sometime in June.