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1 [1] (July 25, 2016)

handle is hein.crs/crsmthabgke0001 and id is 1 raw text is: CRS Reports & Analysis Legal Sidebar What Does the Supreme Court's 4-4 Split in Texas Mean for Future Executive Action as to Immigration? 07/25/2016 The nominee or presumptive nominee for President of both major political parties has expressed a willingness to take certain actions as to immigration on his or her own, without waiting for Congress to enact further legislation (although the specific actions they would take vary, depending upon their policies on immigration and other issues). This has raised questions about whether and how the Supreme Court's recent 4-4 split in Texas v. United States might affect the Executive's ability to go it alone on immigration in the future. As is explained below, although the High Court's decision in Texas sets no binding national precedent, it could still constrain the Executive's ability to take certain actions, particularly as to large-scale grants of relief from removal that would result in aliens being deemed lawfully present and obtaining authorization to work legally in the United States. Other actions-such as changes in the Executive's enforcement priorities, the removal or non-removal of individual aliens, and the denial of entry to particular classes of aliens-are less impacted by the Texas decision. Grants of Relief from Removal Resulting in Lawful Presence and Work Authorization The litigation in Texas concerned a specific executive action as to immigration: namely, a prp~al that could have granted one type of relief from removal-deferred action -to approximately five million aliens who had entered or remained in the United States in violation of federal immigration law. Once granted deferred action, these aliens would have been deemed lawfully present for certain purposes of federal and state law, a designation which would have entitled them to receive some (although not all) federal, state, and local public benefits and other assistance under existing law and policy. They would also generally have been eligible to work le ally in the United States pursuant to existing law and policy. Texas and a number of other states challenged the proposed deferred action program, arguing, among other things, that the program violated the Administrati -- Pcdu (APA) both procedurally and substantively because it was implemented through a policy memorandum, not notice-and-comment rulemaking, and exceeded the Executive's authority under the Immigration and Nationality Act (INA). After finding that the states had standing to challenge the deferred action program and that the program was subject to review by the courts, a federal district court barred its implementation on the grounds that it violated the APA procedurally. The U.S. Court of Appeals for the Fifth Circuit affirm.ed the district court by a vote of 2-1, and also found that the program violated the APA substantively. The Obama Administration appealed to the Supreme Court, which, in cases where the Justice are evenly divided, issued a decision that affirmed the Fifth Circuit's decision without any opinion or indicating of the Justices' voting alignment. The High Court's decision sets no national precedent as to the permissibility of the challenged program. However, it leaves in place a Fifth Circuit decision that not only upheld a nationwide ban on the program's implementation, but also relies upon reasoning that could constrain certain executive actions as to immigration in the future by leaving them vulnerable to challenges in the Fifth Circuit. For example, the Fifth Circuit concluded that the states have standing to challenge the deferred action program based on the costs that Texas, in particular, would incur in issuing driver's licenses to aliens granted deferred action. It also took the view that granting deferred action is not an unreviewable .exercie of enforcement discretion, but rather an affirmativ.actiom that confers 'lawful presence' and associated