DACA was announced in June 2012. At the time, there were no significant legal challenges to the policy. As hundreds of thousands of people began to benefit from the policy, it became evident that the courts would not allow it to be stopped.
On the other hand, DAPA faced a different situation. By late 2014, the Republican Attorney General Machine was fully operational. Attorney General Abbott challenged the policy in the U.S. District Court for the Southern District of Texas, Brownsville Division. The legal team involved in the case was impressive, including Andy Oldham (5th Circuit), Jimmy Blacklock (Supreme Court of Texas), Brantley Starr (NDTX), Cam Barker (EDTX), Scott Keller, and others. This case introduced the “Driver’s License” theory of standing, which has been used in numerous challenges to immigration non-enforcement. I filed an amicus brief on behalf of the Cato Institute. (Cato would not file such a brief today.)
The DAPA challenge succeeded, in part because a preliminary injunction was obtained before anyone could enroll in the program. DACA, on the other hand, remains in effect. Even after President Trump attempted to rescind DACA, Chief Justice Roberts established a complex test regarding reliance interests to ensure individuals could maintain their deferred action and work authorization.
This brief history brings us to the present. Recently, the New York Times reported that President Biden was considering a new executive action to create a pathway to citizenship for certain alien spouses of U.S. citizens. Typically, when the media reports on a policy under consideration, it is likely to be issued. I anticipated this pro-immigration policy would counterbalance the President’s controversial asylum policy.
The Times described the potential policy as granting undocumented spouses “parole in place,” allowing them to stay in the country, work legally, and access a path to permanent residency.
I have searched for detailed analysis of the policy but have been unsuccessful. What will this policy be named? 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 unveil a new immigration program that would offer a path to citizenship for hundreds of thousands of immigrants in the country illegally who are married to U.S. citizens, as per lawmakers and individuals familiar with the matter.
Biden intends to make the announcement at the White House alongside members of Congress, immigration advocates, and U.S. citizens who have been unable to sponsor their spouses for green cards due to complex immigration rules.
The program could benefit immigrants who have resided in the country for at least ten years, providing them with work permits, protection from deportation, and a route to apply for green cards, a step towards citizenship. The application process is expected to open by the end of the summer, according to an administration official.
Similar to DAPA, this policy will not immediately take effect. There will likely be an application process involved.
I anticipate legal challenges from Texas and other opponents. The standing theory will likely mirror that of DACA. I will provide analysis once we receive an OLC opinion. I made a similar request regarding DAPA on PBS a decade ago. It feels like déjà vu to 2014. My hair was shorter, and I spoke faster.
