January 20, 2016

SCOTUS to Hear Challenge to Executive Amnesty


  • On Tuesday, the Supreme Court agreed to examine the president’s executive amnesty program, known as DAPA.

  • Oral arguments will likely be in April, with a final decision released in June.

  • The Supreme Court expanded the case to consider whether the president’s actions violated the Constitution.


On Tuesday, the Supreme Court agreed to consider the legal challenge to President Obama’s executive amnesty program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. The case, U.S. v. Texas, likely will be argued in April, with a final decision in June. If the Supreme Court upholds the lower courts’ injunction, the program will expire with the president’s term and remain another one of Obama’s illegal executive actions struck down by the courts. If the court approves the amnesty program, the president would be able to implement the program in the final months of his administration, making it more difficult for the next president to reverse the policy.

Supreme Court timeline for executive amnesty

History of the Case

For years, President Obama said he had no authority to unilaterally change immigration law. In November 2014, he changed his mind and announced the DAPA program, as well as the expansion of the 2012 Deferred Action for Childhood Arrivals, or DACA. After these changes were announced, 26 states challenged the administration in court. In February of last year, a federal district court in Texas issued a preliminary injunction blocking the president’s actions. The administration appealed the preliminary injunction to the Fifth Circuit, which upheld the district court’s injunction in a 2-1 decision released last November. The preliminary injunction is now before the Supreme Court.

Supreme Court Expands the Case

In upholding the preliminary injunction, the circuit court found that the president’s executive amnesty policy violated the Administrative Procedure Act by failing to comply with notice-and-comment rulemaking requirements and by being unsupported by law. The circuit court did not decide whether the president’s action violated the Constitution. The Supreme Court, in an unusual move, has requested briefs on whether the executive amnesty violates the constitutional command that the president “take care that the laws be faithfully executed.” This does not guarantee the court will decide the constitutional issue, but it opens the possibility of a Supreme Court decision strengthening – or weakening – the constitutional limits on executive power.

Issue Tag: Judiciary