On November 20, 2015, attorneys for the Obama administration appealed a November 9, 2015 decision from the Fifth Circuit Court of Appeals which upheld an injunction against the implementation of President Obama’s executive immigration policy known as the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA.  The injunction, sought by 26 states, prevents implementation of the president’s plan on a nationwide level.

According to the Fifth Circuit’s opinion, DAPA would have deferred immigration proceedings, granted work authorizations, removed certain Social Security and Medicare restrictions against over four million undocumented individuals currently in the United States, and grant those individuals additional state benefits.  In a 2-1 decision, the appellate panel upheld the district court’s injunction against DAPA, holding that the plaintiff states were likely to succeed in showing that President Obama’s policy constituted a “substantive” rule that must go through notice and comment rulemaking pursuant to the Administrative Procedures Act.  However, the Fifth Circuit went beyond the district court’s holding by also concluding that DAPA is “manifestly contrary” to the Immigration and Nationality Act.  In other words, the Fifth Circuit found both a procedural and a substantive defect in DAPA, curtailing the Obama administration’s ability to implement DAPA through the normal notice and comment rulemaking process.

Due to the timing of the federal government’s appeal, it is possible that the Supreme Court will hear this case during its current term, which ends in late June or early July 2016.  According to SCOTUSblog, the Solicitor General asked the Court to grant “immediate review” of the Obama administration’s petition.  However, many speculate that the 26 states will request additional time to respond to the federal government’s petition in an effort to push the decision to the next Supreme Court term.

While the Fifth Circuit’s decision does not directly impact employer-sponsored immigration issues, it does significantly reduce the pool of potential authorized workers in the United States.  The ruling also sends a message to President Obama that similar executive actions, whether dealing with immigration or another subject matter, may be met with successful court challenges notwithstanding congressional gridlock.