Frequently Asked Questions Regarding the Supreme Court's 4-4 Split on Immigration Page: 1 of 3
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CRS Reports & Analysis
Frequently Asked Questions Regarding the Supreme
Court's 4-4 Split on Immigration
On June 23, 2016, an evenly divided Supreme Court issued a decision that, consistent with recent practice, affirms
without any opinion or indication of the Justices' voting alignment an earlier decision of the U.S. Court of Appeals for
the Fifth Circuit barring the Obama Administration from implementing two initiatives that would potentially have
granted relief from removal to millions of aliens who entered or remained in the United States in violation of federal
immigration law and lack legal immigration status [hereinafter referred to as "unlawfully present aliens"]. One of these
initiatives is known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) because of
the population to which it would have granted deferred action (one type of relief from removal) and work authorization.
The other initiative involved an expansion of the Obama Administration's earlier Deferred Action for Childhood
Arrivals (DACA) program, which grants relief from removal and work authorization to certain unlawfully present
aliens who were brought to the United States as children and raised here. The initial DACA program itself was not at
issue in the Fifth Circuit decision before by the High Court.
This Sidebar provides answers to frequently asked questions regarding the effects of the Supreme Court's decision.
Earlier Sidebar postings discuss the Fifth Circuit's decision, and address the nationwide reach of the ban upon the
implementation of DAPA and the DACA expansion that the Court upheld. A forthcoming Sidebar will explore in
greater detail the implications of the Supreme Court's split decision for future executive actions as to immigration.
What does the Supreme Court's decision mean for implementation of DAPA and the DACA expansion?
The affirmance by an equally divided Supreme Court of the Fifth Circuit's decision in United States v. Texas means that
a district court order barring implementation of DAPA and the DACA expansion remains in effect. This order involves
a prohibitory preliminary injunction, a legal device used to bar a party to litigation from taking challenged actions
before a court has an opportunity to hear and rule on the merits of the challenge to the actions. It is not a permanent
injunction, and the district court in this case continues to hear arguments on the merits (although it should be noted that
one factor considered by courts in determining whether to grant a preliminary injunction is the likelihood that the party
seeking the injunction will prevail on the merits). Once the district court rules on the merits in Texas, a party could then
appeal to the Fifth Circuit, with a party in that forum potentially seeking review from the Supreme Court-which could
have a full complement of nine Justices, instead of its current eight Justices, by that point. This latter scenario underlies
the suggestion some have raised that the High Court could ultimately uphold the challenged deferred action programs,
or similar programs, in the future despite its June 23, 2016, decision.
Will would-be beneficiaries of DAPA and the DACA expansion be removed?
In their opinions, the lower courts in Texas have made clear that they do not view the preliminary injunction currently
barring implementation of DAPA or the DACA expansion as affecting the Obama Administration's immigration
enforcement priorities. These priorities include aliens who threaten national security or public safety, as well as recent
illegal entrants; and eligibility for DAPA, in particular, would have been limited to aliens who are not among the
Administration's enforcement priorities. After the Supreme Court's decision was issued, President Obama reiterated
that would-be beneficiaries of DAPA and the DACA expansion "remain low priorities for enforcement." Aliens who
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Frequently Asked Questions Regarding the Supreme Court's 4-4 Split on Immigration, report, June 24, 2016; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc855866/m1/1/: accessed April 25, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.