Piedra: DACA+/DAPA ruling an institutional failure

For Kansas City immigration lawyer and advocate Jessica Piedra, Thursday’s Supreme Court ruling cancelling deportation relief for an estimated 4.5 million undocumented immigrants is an institutional failure.

A four-to-four split ruling — which does as much as if the court hadn’t taken the case at all — might have been averted with a ninth justice in late Antonin Scalia’s seat, “but the Senate refuses to confirm one,” Piedra said.

Piedra added that similar versions of the same lawsuit — like “Crane v. Johnson” where Mississippi state officials and Immigrations and Customs Enforcement agents — had been dismissed because both parties had failed to show standing, or demonstrable harm, in the creation and enforcement of Deferred Action for Childhood Arrivals (DACA).

Expanding DACA and creating a similar program for parents of legal residents, Deferred Action for Parents of American and and Lawful Residents (DAPA), may not have been necessary had the House of Representatives brought comprehensive immigration reform to a vote. “We’d have resolved a large part of this issue” with legislative action, Piedra commented.

The Supreme Court ruling nullifying President Obama’s attempt to expand DACA and ending DAPA prematurely “is not in any way a victory,” Piedra said.

Piedra stressed that those who are eligible for the original DACA — an estimated 1.2 million unauthorized U.S. immigrants nationwide entitled to deportation relief through the 2012 program — are not affected by this ruling.

Split rulings are designed to be impossible due to the nine-member makeup of the Supreme Court. The 2016 term is being carried forth by an eight-member Supreme Court after the death of Antonin Scalia in February and subsequent inaction on naming a successor to his seat. The Supreme Court previously split evenly on high-profile cases involving public labor unions and also gender discrimination when seeking loans.

Looking forward on the ruling, Piedra said immigration advocates could attempt legal action to start the programs through more friendly courts, but warned a president elected in November unfriendly to the programs could just as easily rescind them. That would be a time consuming legal measure, Piedra warned.

“On a practical level, it’s going to be a while before we get any action,” she said. “The real solution is with Congress.”