Fifteen Eighty Four

With immigration at the forefront of this year’s US Presidential Election, and a decision from the Supreme Court on United States v. Texas expected at the end of June, we asked some of our authors to reflect on the ongoing debates over the future of immigration law and policy in the United States. This is part three of a four-part series.

It is no secret that a Republican-controlled Congress and a Democratic President are at odds on a wide range of issues.  Many critical problems have not been addressed at all or have been dealt with only by unilateral action of one branch or another.   The fate of the 11 million unauthorized migrants said to be in the United States is one such area; for over a decade, Congress and Republican and Democratic administrations have failed to come up with a solution.  United States v. Texas, pending in the Supreme Court, presents the issue of how far the President can go on his or her own authority to mitigate their situation.

At issue is a program called DAPA, Deferred Action for Parents of Americans.  Under DAPA, announced by the Obama Administration in November 2014, unauthorized migrants whose children are U.S. citizens or Lawful Permanent Residents (so-called “green card” holders), and who met certain other requirements such as lack of a disqualifying criminal record, were eligible for deferred action.  DAPA was put on hold in federal court based on a lawsuit by 26 states, and the Supreme Court heard argument in April, 2016.  DAPA is a cousin of DACA, Deferred Action for Childhood Arrivals, an Obama Administration program which benefited over half a million people who entered the United States before the age of 16.  DACA was not challenged in court, and has been in operation since 2012.

Deferred action is a form of relief driven by the fact the government does not have the resources to deport everyone who theoretically could be deported.  For example, there are over 10 million unauthorized migrants in the United States, but Congress only appropriates enough money to deport about 400,000 each year.  Given the reality that many people here without authorization are never going to leave, some argue it makes sense to focus on deporting those who are potentially the most harmful to the United States—say, those convicted of serious crimes such as rape, or murder—rather than whoever law enforcement officials happen to come across first.  The Obama Administration has prioritized deporting noncitizens convicted of serious crimes, and those apprehended at or near the border.

“Deferred action” is a formal determination that, for the moment, the United States will not seek to deport a non-citizen who is in fact deportable.   The upside of deferred action is that it can come with work authorization pursuant to a federal regulation enacted in the Reagan Administration.  The downside is that a person granted deferred action remains deportable, and therefore can be removed at any time (if, for example, they commit a crime, or if enforcement policy changes). Also, deferred action carries no path to permanent legal status or citizenship—DAPA recipients, like those with DACA status, are in a holding pattern until comprehensive immigration reform comes to pass, or, alternatively, Congress or an Administration decides to deport them.

No one denies that Presidents have prosecutorial discretion to focus on some wrongs rather than others.  Just as the Department of Justice can focus on investigating terrorism rather than, say, those who illegally reuse postage stamps, all agree that the Department of Homeland Security can focus on deporting the most dangerous non-citizens.  Also, the states challenging DAPA did not question the validity of the regulation allowing those with deferred action to work.

It may well be that the case legally is a tempest in a teapot.  Perhaps the core controversy is in the language in the Administration memorandum creating DAPA stating that those receiving benefits are “lawfully present in the United States.”  The states challenging the program claimed that DAPA was “an unprecedented unlawful assertion of executive power,” because the President cannot wave a magic wand and unilaterally declare millions of people to be lawful residents, when federal law says they are deportable.  The United States essentially agreed with this point, but responded that the lawfully present” language was technical, and meant primarily that an individual not unlawfully present in the United States for purposes of provisions of the Immigration and Nationality Act banning those who are unlawfully present in the United States for particular periods of time.  It did not mean that they were lawfully present in the sense that they had the right to be in the United States or could not be deported.

No matter the outcome, the case is important because it represents an action on the part of a majority of states to intervene in immigration policy.  But particularly because the Court is shorthanded after the death of Justice Scalia, it seems unlikely that the Court will issue a decision with broad precedential impact.