In an already action packed term the Supreme Court has definitively secured this term’s place in history but agreeing to decide whether the President’s deferred action immigration program violates federal law or is unconstitutional. The Court will issue an opinion in United States v. Texas by the end of June 2016.

The Deferred Action for Parents of Americans (DAPA) program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States. About 5 million people are affected.

Twenty six states sued the United States and won before the Fifth Circuit.

The Court will decide four legal issues in this case.

The United States argues that the states lack “standing” to challenge the DAPA program. The Fifth Circuit concluded that the cost of issuing drivers licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.  

States also challenged the DAPA program as violating the Administrative Procedures Act (APA) notice-and-comment requirement and claim it is arbitrary and capricious in violation of the APA. The lower court concluded the states were likely to succeed on both claims.

The Fifth Circuit reasoned the DAPA is a substantive rule, requiring the public to have the opportunity to offer comments (which did not occur) not a policy statement.

The DAPA is arbitrary and capricious the Fifth Circuit reasoned because it is “foreclosed by Congress’s careful plan” in the Immigration Naturalization Act for “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”

The lower court did not address the question of whether the DAPA program is constitutional. Regardless, the Supreme Court has agreed to do decide whether it violates the Constitution’s Take Care Clause which states that the President shall “take Care that the Laws be faithfully executed.” The states argue because the DAPA is contrary to federal law the President is failing to “take care” that federal law is followed, as the Constitution requires.