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DAPA Going Forward

The Supreme Court is expected to hear the case of President Obama’s controversial executive immigration order.[1] Issued in 2014, Deferred Deportation Action for Parents of Americans (DAPA) would not only allow millions of illegal parents to stay in the country, but also to obtain temporary work permits and drivers licenses.[2] Twenty-six states (the “states”) are challenging the government’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) as a violation of the Administrative Procedure Act (“APA”).[3]

The petitioners argued that the government did not comply with certain procedural requirements under the Administrative Procedure Act (APA), including notice-and-comment rulemaking.

The lower courts, both the trial and court of appeals, found DAPA expanded Deferred Action for Childhood Arrivals program (DACA) in a “substantive and non-discretionary” way which violated the Notice-and-Comment Rulemaking provisions to notice-and-comment procedures, rather than general statements of policy. However, as the Department of Homeland Security (DHS) pointed out, the expanded DACA and DAPA initiatives are policies, under which DHS must decide on a case-by-case basis whether to grant a particular individual’s request. DHS national procedures which dictate how officers review DACA claims, specifically allow discretionary denials. The procedures provide a form with a box permitting denials solely on the basis of discretion—even where eligibility guidelines are met, as well as another box permitting denial where a requestor “do[es] not warrant a favorable exercise of prosecutorial discretion because of national security or public safety concerns.”[4]

On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order granting the preliminary injunction. The majority accepted the lower court’s findings that Texas has standing to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of expanded DACA and DAPA.

The court acknowledged that judicial review is unavailable under the APA where a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall squarely within this category.[5] Nonetheless, the majority also found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment rulemaking because DAPA and expanded DACA determinations are non-discretionary.

In addition, the majority held that the new deferred action initiatives are arbitrary and capricious because the federal government did not have authority to promulgate them under the Immigration and Nationality Act.

The bar for receiving the injunction in this case seems to have been relatively easy for the plaintiff’s to meet, however, their likelihood of success under the Administrative Procedure Act is far less certain. It is extremely unlikely that the DAPA will be held arbitrary and capricious, because that standard of deference is relatively high. There are also numerous ways around the notice-and-comment rulemaking provision. As a result, this case is unlikely to be upheld in the spring when it is reviewed by the Supreme Court.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] Texas V. United States, 809 F.3d 134 (5th Cir. 2015).

[2] “Understanding the Legal Challenges to Executive Action”. Jan. 21, 2016.

[3] Melissa Crow, Symposium: Back to immigration basics – Why the DAPA/DACA case is simpler than it seems, SCOTUSblog (Feb. 10, 2016, 12:55 PM),

[4] Texas V. United States, 809 F.3d 134 (5th Cir. 2015)

[5] “Understanding the Legal Challenges to Executive Action”. Jan. 21, 2016.

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