On June 23, 2016, a divided U.S. Supreme Court announced that it could not reach a decision in the in the long-awaited case, United States v. Texas. The even 4-4 split means that the 5th Circuit Court’s injunction will remain in force. This injunction blocked the expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

While this is a very disappointing result, the fight over DAPA and expanded DACA is far from over.

What just happened, in plain English:

When the government tried to implement DAPA last year, 26 states sued to put a permanent stop to the DAPA program. This lawsuit is still open and pending review with the courts. However, lawsuits like this take long time. To prevent the government from starting DAPA while the case was pending review, the states also asked a Texas court to put an immediate temporary stop on DAPA. The goal was to keep DAPA on hold until there is a final case decision about the permanent stop lawsuit. The government quickly appealed this temporary stop order all the way to the U.S. Supreme Court.

The U.S. Supreme Court normally has nine justices. Following the death of Justice Scalia, they are now eight. If the Court is evenly split on a particular case, e.g. four justices are “for” and the remaining four justices are “against”, then the Court cannot reach a final decision and the result from the lower courts is affirmed by default. This is exactly what happened here. The Supreme Court was split evenly at 4-4 and could not make a final decision on the government’s request to lift the temporary DAPA stop. This means that the Texas Court’s decision remains unchanged.

What happens next?

DAPA is not dead and there is still hope. It is too early to tell what the government will do but there are a few possible options:

  • Request rehearing: Since this is a very unusual situation that the Supreme Court was evenly split and could not reach a decision, the government may petition for a rehearing. However, the Court very rarely agrees to rehear cases and even if they agree, it will almost certainly happen after the November elections.
  • Limit scope of injunction: The Texas Court blocked DAPA across the entire United States. The government may try to convince this Court to limit the stop order only to the territory of the 26 states that sued the government.
  • Appeal final case decision to Supreme Court: So far the fight has been over a temporary stop of the DAPA program. This is not the final decision on DAPA and the government will have a chance to argue its case before the Texas District Court in a few months. If the District Court rules against DAPA, the government may appeal the final decision before the 5th Circuit Court of Appeals and then take it again before the U.S. Supreme Court.

In sum, the fight is not over but it will likely take some time until we have a final resolution on the DAPA program.

Is DACA in danger?

It is hard to say. The existing DACA program was not a part of this lawsuit and it was not put on hold like DAPA. However, since the Supreme Court did not make a final decision on DAPA, the 26 states could now sue the government in the same Texas court and bring the same legal arguments to stop DACA as well. In practice, this is not likely to happen because of politics. DACA has been in place for four years and has more than a million participants. Even extreme anti-immigration politicians may find it politically risky to try and stop DACA.

What can you do?

If you are a U.S. citizen, you should absolutely vote. DAPA and DACA’s future depends not only on the courts but also on who becomes the next President of the United States. DAPA is not like the typical law because it was not passed by Congress. It is simply a Presidential decision and the next President can either leave it standing or kill it. While you cannot influence court decisions, you have the power to decide who the next President is. Remember, it is not just a new President that we are electing in November 2016. Many congressmen will also run for election this year. DAPA was never meant to be permanent but was designed as a temporary measure until Congress finally passes comprehensive immigration reform. The ultimate goal is to have Congress pass a new immigration law that will permanently fix our immigration system. This is why you should make your opinion count at the ballot box.