Kent vs. Krent III Background

Kent vs. Krent III
Tuesday, April 5, 2016, 1:00 PM
Chicago-Kent College of Law
Governor Richard B. Ogilvie Auditorium

The Advocates:
Dean Harold Krent (arguing for the United States, the Petitioner)
Professor Kent Streseman (arguing for Texas and 25 other states, the Respondents)

The Chief Justice:
Michael A. Scodro, Partner, Jenner & Block LLP

Associate Justices:
Brian Dodds (3L)
Kenneth Matuszewski (3L)
Alexander Halaska (2L)
Emily Linehan (2L)
Ryan Suniga (2L)

The Marshal:
Jerome Urbik (Class of 2015)

Kent vs. Krent has become a proud annual tradition of the American Constitution Society. Each year, just after our 1L students have finished their appellate brief for legal writing class and are beginning to prepare for their Charles Evans Hughes Oral Arguments, we ask Dean Krent and Professor Streseman to do an oral argument on a case that is currently pending before the U.S. Supreme Court.

Our “Supreme Court” is typically composed of current second and third-year Chicago-Kent students, and is led by a prominent figure in the legal field. This year, our Chief Justice is Michael A. Scodro, who is a Partner in the Appellate Practice Group at Jenner & Block LLP, a former Illinois Solicitor General, and a former Law Clerk to Justice Sandra Day O’Connor.

This Year’s Case: United States v. Texas

This year, Dean Krent and Professor Streseman will be arguing United States v. Texas. This case raises critically important legal issues concerning the discretion of the executive branch in enforcing U.S. immigration laws.

Introductory Background

In June 2012, the Department of Homeland Security (DHS) implemented Deferred Action for Childhood Arrivals (DACA). The DACA program was implemented pursuant to the executive’s prosecutorial discretion in setting priorities on enforcement of immigration laws—for example, against individuals who are a threat to national security or have committed felonies or significant misdemeanors. The Obama Administration determined that certain individuals without lawful immigration status who were brought to the United States when they were under the age of sixteen were to be considered low priority. Those individuals could now register with the DACA program, which would give those individuals a temporary reprieve from the threat of removal (deportation) and would allow them to apply for a temporary employment authorization card.

The Challenged Program

In November 2014, DHS established a similar process for certain parents of citizens and lawful permanent residents. The new program was known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). But before it could be implemented, Texas and twenty-five other states sued to enjoin the implementation of DAPA, arguing that it violated the Administrative Procedure Act (APA) because it had not gone through the notice-and-comment process, and that the new program went outside the scope of the Immigration and Nationality Act (INA). The states also argued that DAPA violated the Take Care Clause of the Constitution.

Procedural History

The district court ruled that the states had standing to file the suit and temporarily enjoined the implementation of DAPA because the states had established a substantial likelihood of success on the APA notice-and-comment claim. The Fifth Circuit affirmed the district court’s judgment, holding that the states had standing as well as a substantial likelihood of success on their substantive and procedural claims. In early 2016, the U.S. Supreme Court granted certiorari to hear the case. Oral argument is scheduled for April 18, 2016.

Issues Presented in Our Court Today

Our Kent vs. Krent oral argument will be limited to the following two substantive issues:

1. Is the Obama Administration’s DAPA guidance in accord with the Immigration and Nationality Act?
2. Does the Obama Administration’s DAPA guidance violate the Take Care Clause?
3. Is the Obama Administration’s DAPA guidance subject to the notice-and-comment requirement of the Administrative Procedures Act?

Due to time constraints and for the sake of clarity, our advocates will not be arguing the standing issue.