DACA was announced in June 2012. At the time, there were no meaningful legal challenges to the policy. Indeed, as hundreds of thousands of people received benefits under the policy, it became clear that the courts would not let it be halted.
DAPA was very different. By late 2014, the Republican Attorney General Machine was operating at full steam. Attorney General Abbott challenged the policy in the U.S. District Court for the Southern District of Texas, Brownsville Division. The brainpower on that case was staggering. Among others involved were Andy Oldham (5th Circuit), Jimmy Blacklock (Supreme Court of Texas), Brantley Starr (NDTX), Cam Barker (EDTX), Scott Keller, and more that I'm forgetting. This case innovated the "Driver's License" theory of standing, which has formed the basis of countless challenges to immigration non-enforcement. I filed an amicus brief back on behalf of the Cato Institute. (No, Cato would not file such a brief today.)
The DAPA challenge was successful, in large part, because a preliminary injunction was obtained before anyone was able to sign up for it. DACA, by contrast is still on the books. Even after President Trump tried to rescind DACA, Chief Justice Roberts made up some convoluted test about reliance interests to ensure people could keep their deferred action and work authorization.
That brief history brings us to the present. Last week, there was a report in the New York Times that President Biden was thinking about some new executive action to provide a pathway for citizenship for certain alien spouses of U.S. citizens. When the press reports that some policy is under consideration, that almost certainly means the policy will be issued. Indeed, I thought this pro-immigration policy would be used to offset the President's unpopular-on-the-left asylum policy.
The Times offered this description:
The president would exercise his authority to grant the undocumented spouses "parole in place," a designation that would permit them to remain in the country, work legally and gain access to a pathway to permanent residency.
I've been poking around to find some detailed analysis of the policy, but I was unsuccessful. What will this policy be called? Parole in Place for Spouses–PIPS?
Today, the Wall Street Journal reported that President Biden will announce the spouse policy, tomorrow, Tuesday.
President Biden is expected to announce a new immigration program Tuesday that would provide a path to citizenship for hundreds of thousands of immigrants in the country illegally who are married to U.S. citizens, according to lawmakers and others familiar with the matter.
Biden plans to make the announcement at the White House alongside members of Congress, immigration advocates and U.S. citizens who, because of arcane immigration rules, haven't been able to sponsor their spouses for green cards.
The program has the potential to benefit immigrants who have been living in the country at least a decade, offering them work permits, deportation protections—and a route for them to apply for green cards, which is the pathway to citizenship. The application process is expected to open by the end of the summer, an administration official said.
Much like with DAPA, this policy will not go into effect right away. There will at least be some application process.
I would expect legal challenges from Texas and all the usual suspects. The theory of standing will be the same as the theory of standing with DACA. If and when we get an OLC opinion, I will write about it. I made the same request on PBS a decade ago with regard to DAPA. I'm having serious deja vu to 2014. My hair was much shorter and I talked much faster.
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