In October, on the opening day of its 2016-2017 term, the United States Supreme Court said no to a final opportunity to take one last look at President Obama’s executive orders regarding immigration while he is still in the White House. The justices issued a one-line statement denying a request to rehear the immigration arguments after a new justice is confirmed to replace Justice Antonin Scalia, who passed away in February.

David Wolfe Leopold, a past president and past general counsel of the American Immigration Lawyers Association (AILA), told the Bloomberg Bureau of National Affairs, “This has the potential for judicial chaos.” Leopold said the absence of a final ruling from the Supreme Court may generate new lawsuits from individuals and from other states. “It’s very disappointing that the Supreme Court didn’t allow this case to be reheard,” Leopold said. “That would’ve been the right thing to do.”

Businesses as well as individuals will be affected, according to AILA Executive Director Ben Johnson. “This is a hugely important issue for businesses and for employers,” Johnson told Bloomberg. “They need and deserve some clarity and some consistency on the issue of immigration just as much as anybody does.” Johnson said businesses “need stability, and the kind of chaos we’ve seen in the immigration system is just not good for business.”


In June, the justices were unable to reach a decision regarding the president’s executive orders, and their 4-4 vote had the effect of leaving intact a lower court ruling that blocked the executive orders from taking effect. President Obama’s executive orders would have shielded as many as five million immigrants from possible deportation. However, Texas and twenty-five other states took legal action to block the executive orders. The court’s tie vote means there has been no final decision regarding a president’s power to issue and enforce these kinds of executive orders.

The Supreme Court sent the case back to the lower courts after the tie vote in June, where the case was put on hold while the request for a rehearing was pending. The Justice Department had requested the opportunity to argue the case again before a full panel of nine justices, saying the request was consistent with historical Justice Department practices and would express “the need for prompt and definitive resolution of this important case.”

The White House said President Obama was “disappointed” by the Supreme Court’s refusal to rehear the case. Of course, when the president issued the two executive orders regarding immigration back in 2014, no one foresaw the legal obstacles that those executive orders would face. An executive order issued in 2012 – which established the Deferred Action for Childhood Arrivals or “DACA” program – went unchallenged and remains in effect.


DACA allows the immigrants referred to as “dreamers” – brought into the United States by their parents before their 16th birthdays and before June 2007 – to obtain a renewable two-year work permit and deferred action on immigration. DACA does not offer a path to citizenship or to lawful permanent residence. It merely provides temporary authorization to work in the United States and temporary protection from deportation to those who qualify.

In November 2014, President Obama issued two more executive orders. One of the orders would have created “DAPA,” deferred action for the parents of U.S. citizens and the parents of lawful permanent residents, provided the parents had been in the United States for at least five years and had no criminal record. A second executive order would have expanded the DACA program to provide deferred action and work authorization for three years (rather than two) to those who are eligible, including those with pending renewal applications.

Texas and twenty-five other states disputed the authority of the president to approve the work authorizations and to offer relief from the possibility of deportation to as many as five million undocumented immigrants in the U.S. DAPA and the expanded DACA program were set for implementation in 2015, but Texas and the other states moved to block the implementation, and in February 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a temporary injunction on behalf of those states. DAPA and the expanded DACA program never really got a chance – at least, not yet.

Any immigrant who believes that he or she qualifies – or would have qualified – for either the DACA or DAPA programs should speak right now with an experienced Las Vegas immigration attorney. Similarly, U.S.-based employers who hire immigrants and have concerns regarding the DACA program or any other legal matter linked to immigration should obtain experienced legal counsel.


Research conducted by the Center for American Progress (CAP) indicates that the DAPA program would have created more than 20,000 new jobs per year in the United States for the next ten years, added $164 billion to the U.S. gross domestic product over the next ten years, and boosted the personal incomes of workers in the United States by up to $88 billion over the next decade.

The Migration Policy Institute (MPI) estimates that 72 percent of the immigrants without documentation in the U.S. are already a part of the U.S. work force, and that over the next five years, those workers could pay over $16 billion in taxes. The Congressional Budget Office has estimated that blocking the DAPA and expanded DACA programs will cost the federal government about $6.3 billion through 2025.

Of course, DACA and DAPA were never designed to repair our broken U.S. immigration system but merely to offer temporary work authorization and temporary protection from deportation. Comprehensive immigration reforms remain imperative, and only Congress can authorize those reforms. For now, immigrants and employers should take their immigration-related legal concerns directly to an experienced Las Vegas immigration attorney.

AILA Executive Director Ben Johnson told Bloomberg, “We are once again in limbo and waiting for somebody in one of the branches of government to take some decisive action.”

Until that happens, millions of immigrants may remain “in the shadows” in the United States, working and paying taxes while continuing to live in fear and uncertainty. Those millions are hoping that a new Congress will take positive and decisive action on comprehensive immigration reform in 2017.