Leading legal observers and immigration law experts continue to weigh in with their assessments of Monday’sSupreme Court oral arguments in United States v Texas. Below, we present some of the key new analyses focused on how the Republican plaintiffs in this highly-politicized argument have shifted their justification for bringing the lawsuit away from the president’s power to grant deferred action and towards work authorization, while also trying to sow confusion over the “lawful presence” phrase. The consensus of true immigration legal experts is clear – the administration has the law on their side. Among the key analyses include:
Stephen Legomsky, a recently-retired law professor at the Washington University School of Law and former Chief Counsel of US Citizenship and Immigration Services, writes in a new Medium post, “Yes, the Immigration Executive Actions are Perfectly Legal”:
“Early on, critics argued that the Administration lacked the power even to make the DAPA population a low enforcement priority. That claim proved untenable, as Congress has given the Administration only enough resources to pursue, at most, about 4% of the undocumented population.
Prioritization was intended and is unavoidable. As the litigation progressed, the critics conceded that the Administration’s prosecutorial discretion policies are perfectly lawful. Indeed, setting priorities is the norm among practically all law enforcement agencies in the country.
So the critics have quietly changed gears. They now focus not on the legality of DAPA itself, but on a separate policy decision — allowing DAPA recipients to work temporarily while their deferred actions are in effect.
First of all, Texas clearly lacks legal standing to challenge the issuance of work permits. Standing demands a showing of harm, and Texas has not shown how the work permits damage it in any way. Under current Texas law, deferred action recipients would be eligible for driver’s licenses regardless of whether they have work permits.
At any rate, the work authorization policy is not new. The Reagan Administration adopted it in 1981, issuing a formal regulation with the force of law. It specifically authorizes work permits for deferred action recipients as long as they can show an economic need to work. In 1986, Congress went further. It defined who may work and who may not. Under the 1986 law, you may work if you are authorized to be employed either by the statute itself “or by the Attorney General” (later changed to the Secretary of Homeland Secretary). Relying on both the statute and the regulation, Republican and Democratic Presidents of all political stripes have granted temporary work permits to a wide range of undocumented immigrants for a wide range of reasons. None of those programs triggered hysterical cries of presidential ‘lawlessness.’
The critics argue that DAPA is different. Although the law says work authorization may be granted either automatically by other provisions of the law or by the Secretary of Homeland Security, the critics contend that Congress didn’t really mean what it said. All Congress actually meant, they argue, is that the Secretary may authorize employment for those people for whom the law already authorizes employment. But the statute doesn’t say that, and reading in such a qualifier would render the language ‘or by the [Secretary of Homeland Security]’ meaningless. The Administration doesn’t need to grant employment authorization to someone who already has it.”
Anil Kalhan, Drexel University Law Professor, writing at Medium, “The Strange Career of United States v. Texas”:
“When the justices of the Supreme Court deliberate over the issues in United States v. Texas, the Republican lawsuit seeking to invalidate the Obama administration’s immigration initiatives, they would do well to reflect upon just how far the arguments that the plaintiffs have presented to them diverge from those that were presented to Judge Andrew Hanen in the Southern District of Texas when the lawsuit was originally filed.
The plaintiffs now aggressively emphasize ‘lawful presence’ as the primary supposed effect of both the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative that they seek to invalidate and its predecessor, Deferred Action for Childhood Arrivals (DACA). DAPA is unlawful, they argue, primarily because it ‘affirmatively grants lawful presence and eligibility for work authorization, as well as a host of other benefits.’ Like Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit, who affirmed the district court injunction that blocked DAPA, the plaintiffs thereby characterize the phrase ‘lawful presence’ as a formal immigration status or a legal classification with some sort of overarching, unitary, and coherent meaning, across the various legal provisions where similar (but not always identical) language is used.
The plaintiffs insist that by allegedly granting an aggregated, intertwined package of legal rights and benefits, which they refer to as ‘lawful presence,’ the administration is ‘unilaterally declaring unlawful conduct to be lawful’ — and indeed, on the very same basis, might even be tempted to go further by ‘granting millions of aliens lawful permanent residency or even citizenship.’
As I have previously explained — and as both the government and intervenors effectively elaborate in their Supreme Court reply briefs — these arguments about ‘lawful presence’ are ultimately a charade. However, it is also strange that any of us are talking about ‘lawful presence,’ eligibility to apply for employment authorization, and some of the other issues that the plaintiffs now foreground before the Supreme Court at all — because for the most part, the plaintiffs did not make any of those arguments in the district court.
…More interesting and significant may be what the plaintiffs’ lurching about to make entirely new legal arguments on appeal says about this case more generally. From the moment it was filed — in a fairly transparent but successful effort at forum shopping — United States v. Texas has been a deeply politicized lawsuit, one whose central allegations diverge dramatically from the basic factual and legal realities concerning the Obama administration’s initiatives. In many ways, the arguments that the plaintiffs now urge concerning ‘lawful presence’ represent the apotheosis of that politicized ‘judicial truthiness.’ That those arguments have been discovered and advanced only on appeal offers further support for the widely shared conclusion that this lawsuit constitutes a political attack in search of a legal rationale.
Beth Werlin, Executive Director of the American Immigration Council, writing at the “Immigration Impact” blog, “Digesting the Argument in U.S. v. Texas: What Is Lawful Presence and Why Does It Not Mean What It Sounds Like?”:
“The simple answer to the Justices’ questions is that yes, under the complex, and often confusing immigration laws, a person’s actions can be both lawful and unlawful. Part of the confusion is that many legal immigration terms carry technical meanings that sometimes differ from what the common meaning of a word might suggest. As Solicitor General Verrilli, who was arguing on behalf of the U.S. government, said yesterday, unlawful presence ‘means something different to people in the immigration world.’
So, let’s break it down. What is ‘lawful presence’ and how can it be that someone with lawful presence still is present in violation of the law?
It begins by understanding what deferred action is and is not. Deferred action has long been a discretionary decision by the immigration agency to grant a temporary, time-limited reprieve from deportation to a noncitizen in the United States without authorization. As an immigration regulation (8 C.F.R. § 274a.12(c)(14)) states, deferred action is ‘an act of administrative convenience to the government which gives some cases lower priority.’ It does not confer any type of lawful immigration status or any ability to remain in the United States, and it does not create any defense to removal. It is simply a forbearance policy.
However, the immigration regulations also state that a person who has deferred action is considered ‘lawfully present’ in the United States for purposes of participating in certain benefits programs (i.e., social security). This means that a person with deferred action may remain present in the United States for so long as the immigration agency continues to forbear, but that the person may be able to pay into social security.
But just because someone is lawfully present does not change the fact that he or she is in violation of the law or lacks a lawful immigration status. Lawful status is a term of art that refers to being in the United States in a specific immigrant or non-immigrant visa classification and complying with its terms.
Just as a person who is present in violation of the law can be ‘lawfully present,’ he or she also can be authorized to work. Congress has long authorized the head of the immigration agency to decide what categories of individuals should be eligible for work authorization. Dating back to 1981, the immigration agencies have allowed individuals without legal status to obtain work authorization. Deferred action recipients always have been among those eligible to obtain work authorization.
This is just commonsense. As Solicitor General Verrilli said yesterday, ‘if you can’t work lawfully, you’re going to either not be able to support yourself and be forced into the underground economy.” Yet another reminder to the Supreme Court that not only is DAPA a lawful exercise of discretion, but it is good policy.”
Shoba Sivaprasad Wadhia, a professor of law at Penn State and one of the nation’s leading scholars on the role of prosecutorial discretion in immigration law, writes at the “Immigration Impact” blog, “Understanding Justice Kennedy’s ‘Upside Down’ Argument in U.S. v. Texas”:
“In one exchange, Justice Anthony Kennedy said, ‘the briefs go on for pages to the effect that the President has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It’s as if—that the President is setting the policy and the Congress is executing it. That’s just upside down.’
Justice Kennedy’s discomfort with the notion that the Executive Branch is dictating policy to the Legislative Branch is simply not the case here. In fact the Executive Branch’s discretionary authority to temporarily protect low priority people from deportation was at the direction of Congress which explicitly delegated the administration and enforcement of immigration laws to the Department of Homeland Security and has required, by statute, the Secretary of Homeland Security to establish immigration enforcement policies and priorities. Moreover, deferred action is one longstanding form of prosecutorial discretion in immigration law that may be granted at any stage of the enforcement process.
…Kennedy’s ‘upside down’ argument leaves an impression that the Administration lacks authority to exercise prosecutorial discretion. But the legal authority is clear and one that even the lawyer arguing on behalf of Texas and the other states who brought suit seemed to agree with, acknowledging that the Administration may prioritize removals and that the government could give cards to everyone saying they are ‘low priority’ as part of its discretion. The humanitarian crisis is striking—and at the moment, prosecutorial discretion is the only solution, albeit a temporary one.”
Marielena Hincapie, Executive Director of the National Immigration Law Center, writing at Huffington Post, “Texas Two-Step On Immigration”:
“What has become clear from Texas’s legal arguments is that they support keeping parents of U.S. citizen children stuck in a woefully out-of-date immigration system and working without the proper authorization, which only benefits unscrupulous employers. Texas says it doesn’t mind keeping people in limbo, but it wants to prevent these people from ever receiving the work authorization they need to better provide for their families.
This proposed ‘solution’ hurts all workers and helps abusive employers who can continue to exploit the immigration system to hire workers under the table. Furthermore, Americans recognize that our current system doesn’t work, and they agree that we should allow people to come forward, pass a background check, register, and then work toward contributing more fully to their communities.
Yesterday, Texas betrayed its true motive for filing the lawsuit against DAPA and DACA. This lawsuit is simply a brazen attempt to use the courts to push its political agenda. I hope the justices see through the smokescreen and remind Texas that politics belong in the statehouse, not the courthouse.”
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