Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
Thursday's deadlock on DAPA leaves the families of 10 million U.S. residents in limbo.
The U.S. Supreme Court was tied 4-4 Thursday on President Barack Obama’s 2014 executive actions on immigration in the case of United States v. Texas. This means that the lower courts’ freeze on the Deferred Action for Parents of Americans (DAPA) remains in place. For the four million undocumented parents of U.S. citizens eligible for the program, relief from deportation is no longer on the horizon in the near future. And that’s not just a huge blow to them and their families, but to the cities they have lived in, worked in, and contributed to.
This outcome was not a surprise given how cleanly split the court has been along ideological lines since the death of Justice Antonin Scalia. And the oral arguments gave no indication to the contrary—though those aren’t always good predictors of a case’s outcome. Even after the new president takes office, and a replacement for Justice Scalia is confirmed, a tidy resolution to the case is far from certain. As Vox’s Dara Lind explained back in April, things could get pretty chaotic from here:
The United States v. Texas case would continue to plod, zombielike, through the courts until it receives a final ruling. Meanwhile, supporters of the president's executive actions may try to get a different coalition of states to sue in another court to start implementing them — creating a possible split between appellate courts, in which the executive actions were constitutional in parts of the U.S. and unconstitutional in other parts.
An incredibly political lawsuit
Immigration policy is squarely within the purview of the federal government. (Even the conservative Supreme Court justices have agreed to that in the past.) But after President Obama announced DAPA in 2014, Texas and 25 other Republican-led states brought a lawsuit claiming that they do, in fact, have “standing” to oppose it on the grounds that at least one of them would be harmed by DAPA. Texas argued that the cost of issuing new drivers licenses to the DAPA-eligible immigrants within its borders would cause immense “economic hardship.” The states also raised questions about whether DAPA is consistent with the Immigration and Nationality Act, and whether it was rolled out in accordance with the Administrative Procedure Act.
In 2015, Lower courts ruled in favor of Texas and the other states, blocking DAPA even before it started. In January 2016, the U.S. Supreme Court agreed to clarify the issues that arose in the lower courts, and then some. On April 11, Lyle Denniston over at SCOTUSblog wrote:
In many ways, the case of United States v. Texas illustrates much about the current political climate in America and in the nation’s capital, in particular. It reflects gridlock, partisan polarization, and the use of sometimes imaginative lawsuits to pursue political or policy agendas.
Thursday’s deadlock fully reflects Denniston’s statement. To be clear, it doesn’t mean that the Supreme Court agrees that the states have standing to oppose DAPA, that the President had overreached, or that DAPA was illegal—just that the bench couldn’t decide one way or the other. (Deferred Action for Childhood Arrivals or DACA, the Obama administration’s 2012 program, is not affected by this Supreme Court impasse.) The tie throws United States v. Texas, along with some other cases, into a legal twilight zone. DAPA could certainly end up back in the Supreme Court. But it could also be decided differently in different lower courts around the country. There’s a number of permutations and combinations of how this case could proceed*. Tejinder Singh, a Supreme Court lawyer, writes on SCOTUSblog, for example:
The United States can certainly go back down and ask that the injunction be modified pending further proceedings. And the issue of the scope of the injunction may not matter because even if the injunction was narrower, the United States might decide not to pursue DAPA if it can't do so everywhere on equal terms. There are lots of balls still in the air, and there may be quite a bit of action in the lower courts about this.
The impact a different ruling might have had
DAPA directly affects 4 million parents, but its impact—had the courts given it a green light—would have been much larger. Around 10 million residents live in households with at least one member who is eligible for relief through this program, according to a joint report released by the Migration Policy Institute and Urban Institute in early 2016. In it, researchers estimated that being legally permitted to work would lift the average household income of these families by 10 percent. These families tend to have a 36 percent poverty rate, which is incredibly high compared to immigrant families overall (22 percent), and even higher compared to families with U.S.-born parents (14 percent). The number of DAPA families in poverty, had the program gone through, would have been reduced by 6 percent.
And these are just the economic benefits of DAPA, reads the MPI report:
Beyond shielding children and families from potentially substantial economic harm resulting from the deportation of the father, deferred action would alleviate the documented psychological, social, and developmental harms associated with having an unauthorized parent.
As I’ve previously written, immigrants—both documented and undocumented—live and work in and around large U.S. metros, and always have. They build these cities and suburbs, help them run, and innovate for their futures.
It’s not clear whether all of these DAPA-eligible immigrants would have come forward had the injunction been lifted. And yes, a ruling in favor of the government would have meant a lot of work for cities. But it would have also led to long-term benefits for them. Audrey Singer, who has done extensive research on metro-level immigrant populations at the Brookings Institution and is now a senior fellow at the Urban Institute, tells CityLab via email:
Cities stand to gain from supporting these immigrants in moving from an undocumented status to one with temporary protection from deportation for the immediate relief, work authorization, and in some places, driver’s licenses. All of these things will improve economic opportunities for those individuals and their families, which in turn, are good for cities.
*Update: President Obama issued a statement on the Supreme Court deadlock: “The fact that the Supreme Court didn’t issue a decision today...takes us further from the country we aspire to be.” He added: “This does not substantially change the status quo, and it doesn’t negate what has always been the case, which is, if we’re really going to solve this problem effectively, we’re going to have Congress pass a law. I have pushed till the limits of my executive authority.”