Balkinization: The “Lawfully Present” Confusion in the DAPA Case

The “Lawfully Present” Confusion in the DAPA Case

Marty Lederman

With Monday’s filing of the reply briefs by the government and the intervenors, the briefing in the DAPA case, United States v. Texas, is now complete. (All of the briefs can be found here.) Oral argument is next Monday.

The challengers’ arguments about why DAPA is unlawful have been something of a moving target throughout the litigation.

Forbearance of removal. When this case started—and even earlier, when public criticism of the DAPA program began—opponents’ arguments focused on the claim that the Secretary of Homeland Security lacks authority to forebear removal of the parents of U.S. citizens, i.e., that he must remove, or at least endeavor to remove, virtually all aliens who are “removable.” Although this argument, about whether the aliens in question must be removed, continues to dominate many public discussions of the case, Texas and the other plaintiffs quickly pivoted away from it early in the litigation, and they now concede that the Secretary can lawfully opt not to remove any and all DAPA-eligible aliens.

Work authorization. Accordingly, the focus of the litigation shifted to a challenge to the Secretary’s practice of granting work authorization to DAPA aliens. As I explained at length in earlier posts, this is, in effect, a challenge not to the DAPA policy itself, but instead to a 30-year-old regulation promulgated by the Reagan Administration, providing that the Secretary may authorize all “deferred action” aliens, along with several other categories of aliens not specified in the statute itself, to work upon a showing of need—an authorization that, in turn, gives employers the legal right to hire such aliens. This Reagan-era rule went through several rounds of extensive notice and comment review; Congress subsequently ratified it, repeatedly; and for several decades after 1987, no one challenged it. (Part II of the Argument in this amicus brief on behalf of former immigration officials, on which I worked, offers a detailed account of the history of that rule and of Congress’s embrace and ratification of the agency’s longstanding interpretation of the immigration laws to afford the Secretary the power to provide such work authorization. See also pages 30-32 of the brief for former INS commissioners.)

“Lawful presence.” The challenge to the work authorization rule continues to be a significant component of Texas’s argument (see pages 50-53, 56-59 of its brief, and pages 23-28 of the brief for the House of Representatives). However, it is no longer the lead argument.

Texas’s primary emphasis—and the main theme of not only its brief (see pp. 45-50) but many of its amici’s briefs, as well—has now shifted again. Texas now leads with the argument that the DAPA program is unlawful (indeed, unconstitutional) because the agency has purported to magically transform certain unlawful conduct by aliens into lawful conduct. As Texas writes on the very first page of its brief, “when Congress has established certain conduct as unlawful, the separation of powers does not permit the Executive to unilaterally declare that conduct lawful.”

This mantra is repeated throughout Texas’s brief. “Such an exercise of [removal] discretion cannot convert an alien’s unlawful conduct into lawful conduct.” (p.15) “[A] decision not to initiate enforcement action cannot transform unlawful conduct into lawful conduct.” (p.41) “Practical constraints on one enforcement mechanism have never justified declaring unlawful conduct to be lawful.” (p.45) “Forbearance from removal, however, cannot transform otherwise unlawful conduct into lawful conduct.” (p.54) “[DAPA] dispenses with immigration statutes by declaring lawful conduct that Congress established as unlawful.” (p.71) “[T]he Executive seeks to make unlawful presence lawful. Under the Constitution, the Executive cannot exercise such legislative power.” (p.73). Etc.

Indeed, by Texas’s own account this notion—that DAPA “declares unlawful conduct to be lawful”—is what “vividly distinguishes this claim from ordinary assertions that an agency exceeded statutory authority,” and thereby allegedly establishes that DAPA violates the Take Care Clause. (p. 72) To similar effect, see also the brief for Texas Governor Abbott and five other governors (p.31):

The limits on the Take Care claim are important to recognize. Mere non-enforcement or under-enforcement of a statute does not give rise to a constitutional claim. Nor does the Take Care Clause apply when the executive exercises prosecutorial discretion or prioritizes some forms of enforcement over others. Rather, the Clause kicks in only when the executive branch purports to suspend or grant dispensations from statutory law—that is, to declare that those in violation of the law are acting lawfully and are entitled to affirmative benefits Congress has denied them.

The brief filed on behalf of the House of Representatives beats the same drum repeatedly:

-- “The Executive does not have the power to authorize—let alone facilitate—the prospective violation of the immigration laws on a massive class-wide scale.” (p.2)

-- “According to petitioners, Congress has given the Executive absolute discretion not just to decline to enforce the immigration laws against more than 4 million people, but to affirmatively authorize those people to keep right on violating those laws.” (p.15)

-- “There is an obvious difference between declining to devote resources to enforcing a law in some circumstances and ‘purport[ing] to alter [the law] and to establish with the force of law that otherwise-prohibited conduct will not violate’ it.” (p.16, quoting Utility Air Regulatory Group v. EPA).

-- “Petitioners identify no other context in which ‘enforcement discretion’ includes the power not just to overlook past violations of the law, but to license future violations as well.” (p.17)

* * * *

What is the basis for this central argument, found in so many of the bottom-side briefs?
The culprit is a single sentence in the Secretary’s DAPA Guidance memorandum: “Deferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”

The DAPA aliens, argue Texas and its amici, are not lawfully present in the United States—it is unlawful for them to be here. Therefore, Texas argues, the DAPA Guidance effectively announces that certain unlawful conduct—remaining in the United States without authorization—is now lawful, thereby exercising an alleged power of “dispensation” that “affirmatively authorize[s] [four million people] to keep right on violating those laws” (House brief at 15).

In its reply brief, however, the government explains (pp. 15-17) that this entire, central premise of the argument against the DAPA policy is based upon a fundamental misunderstanding about the law and the way in which DAPA does or does not affect it:

Respondents are fundamentally wrong to claim that the Guidance confers on aliens whose presence Congress has deemed unlawful the right to remain lawfully in the United States. Aliens covered by the Guidance, like all aliens afforded deferred action, are violating the law by remaining in the United States, are subject to removal proceedings at the government’s discretion, and gain no defense to removal.

Respondents’ principal challenge to the Guidance proceeds from a mistaken premise. Respondents insist (e.g., Br. 17) that the Guidance “declares” unlawful conduct to be lawful. But the Guidance does no such thing.

[A DAPA alien] lacks lawful status and is present in violation of law. J.A. 76; see U.S. Br. 38-39; Unlawful Presence Guidance 9-11. “Lawful presence” thus might be better called “tolerated presence.” Even with deferred action and “lawful presence,” aliens lack lawful status, are actually present in violation of law, are subject to enforcement at the government’s discretion, and gain no defense to removal. 8 U.S.C. 1229a; see 8 U.S.C. 1182(a)(6)(A)(i), 1227(a)(1)(B); see also Pet. App. 413a, 416a-417a; Unlawful Presence Guidance 42 (“does not make the alien’s status lawful”). The Guidance changes none of that.

Once this critical point is understood—that the DAPA-eligible aliens continue to violate the law by remaining in the United States, and that the DAPA Guidance does not affect such illegality—the entire premise of Texas’s main argument disappears.[1]

* * * *

But how did we get here, to a point of such fundamental confusion? Why does the DAPA Guidance say that a DAPA alien “is permitted to be lawfully present in the United States,” if in fact she is not permitted to be here? And if, as the government now concedes, “‘[l]awful presence’ . . . might be better called ‘tolerated presence,’” why didn’t DHS simply refer to it as “tolerated presence” in the first place?

The source of the confusion is yet another longstanding regulation—this one “only” two decades old, having been promulgated in 1996. That regulation deals exclusively with the conferral of certain federal benefits that are peripheral to the dispute in this case.

As Texas explains in its brief, before 1996, the law permitted aliens “permanently residing in the United States under color of law” (PRUCOL) to receive many federal benefits. The courts had construed “PRUCOL” very broadly, to cover many aliens who did not have legal authority to be in the United States. Congress responded in the “Welfare Reform” legislation, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), by prohibiting aliens from receiving most benefits unless they are “qualified”--a quite narrowly defined term that excludes many aliens in the U.S., including those afforded deferred action. 8 U.S.C. §§ 1611(a), 1641(b). However, Congress created an express exception from this benefits limitation: Title II Social Security benefits are available even to non-“qualified” aliens if they are “lawfully present in the United States as determined by the Attorney General.” Id. § 1611(b)(2).

Eleven days after Congress enacted the PRWORA, Attorney General Reno promulgated a regulation as an interim rule, with request for comments, in which she determined that several different categories of aliens are deemed “lawfully present in the United States” solely for purposes of receiving Title II Social Security benefits. Those categories of aliens—which cumulatively remained much narrower than the previous category of “PRUCOL” aliens—included some aliens who are not legally authorized to be in the United States, namely, aliens "under Deferred Enforced Departure (DED) pursuant to a decision made by the President," and aliens afforded deferred-action status. See 8 C.F.R. § 1.3(a)(4)(v), (vi).

Quite honestly, I think it is difficult to justify the original 1996 promulgation of the Rule, to the extent it deemed those two categories of aliens, who are not lawfully present in the U.S., to be “lawfully present” for purposes of the one, discrete (Social Security) benefits provision. As the House reasonably argues in its brief (pp. 26-27 n.4), “Congress’ recognition that whether an individual ‘is lawfully present’ is to be ‘determined by the Attorney General’ does not mean the Attorney General gets to decide what constitutes ‘lawful presence.’ It simply means the Attorney General is responsible for determining whether an individual ‘is lawfully present’ under the statutes Congress has enacted.”

It appears, however, that no one ever submitted any comments objecting to the scope of the rule (which was made final in 2011, see 76 Fed. Reg. 53780). More importantly, in 1997, with full knowledge of the rule’s scope, Congress amended section 1611 to include Medicare and Railroad Retirement benefits, in addition to Title II Social Security benefits. Pub. L. No. 105-33, Tit. V, § 5561, 111 Stat. 638. And in the intervening two decades, Congress has never taken steps to question the administrative regulation providing benefits eligibility for certain categories of aliens who are not, in fact, authorized to be present in the United States. Therefore Congress has arguably ratified the AG’s 1996 reading of the statute, whatever the original merits of that interpretation might have been. It also bears mention that to the extent it might appear counterintuitive to designate as “lawfully present” a group of aliens who lack any legal right to be “present,” well, that’s an oddity not unique to the federal government: Texas itself does the same thing with respect to its conferral of drivers’ licenses. The pertinent Texas statute provides that the Department of Public Safety shall issue a license to an alien who presents federal documentation “that authorizes the applicant to be in the United States.” Yet the Texas Department of Public Safety itself construes that state statute to require issuance of licenses to many aliens who are not “authorize[d] . . . to be in the United States”—indeed, even to some aliens who the federal government does not deem “lawfully present” for purposes of Social Security and Medicare benefits, such as aliens in removal or deportation proceedings (who would actually be detained if they had not received bond), as well as aliens released on an order of suspension following a final order of removal.

Regardless of the substantive merits of the 1996 regulation, the important point for present purposes is simply that that discrete Social Security/Medciare/Railroad benefits rule is the source of DHS's decision to describe DAPA aliens, and other deferred-action and deferred-enforced-departure aliens, as “lawfully present” in the United States—despite the fact that their presence is not lawful. The terms of the 1996 regulation in effect establish “lawful presence” as a de facto term of art, applicable only for purposes of determining which aliens are entitled to receive Social Security, Medicare and Railroad Retirement benefits. As the original Federal Register notice specified, “[t]his definition is made solely for the purpose of determining an alien’s eligibility for payment of title II social security benefits, as required under section 401(b)(2) of the Personal Responsibility Act, and is not intended to confer any immigration status or benefit under the Immigration and Nationality Act.”[2]

* * * *

Three important things follow from this understanding of the source and effect of the 1996 “lawful presence” designation.

First, and most importantly, it demonstrates that the government’s argument in its reply brief is correct, and that the central premise of Texas’s argument is mistaken: Conferring deferred action status upon an alien does not “render” or declare lawful any unlawful conduct by that alien, nor does it “affirmatively authorize” the alien to remain in the United States or to otherwise violate the law.

Second, it’s the smallest of tails wagging a very large dog. If the Court had jurisdiction to consider the legality of the 1996 regulation, and if it were to declare that deferred action aliens and other aliens not authorized to be in the U.S. (a group that includes, but is not limited to, DAPA aliens) are not “lawfully present” for purposes of the PRWORA provision (§ 1611), it would simply mean that such aliens would no longer be entitled to receive Social Security, Medicare and Railroad Retirement benefits. It would not, however, affect the authorities that are at the heart of the DAPA policy, and the litigation challenging it—namely, the Secretary’s authority to defer removing such aliens, and his power to authorize them to work. As the government correctly states in its reply brief, “[e]ven if DHS impermissibly interpreted ‘lawful presence’ in the Social Security or tolling provisions, that would provide no basis for enjoining the [DAPA] Guidance. The Guidance does not change those interpretations.”

Third, in any event, the plaintiffs do not have standing to challenge the 1996 regulation, or the provision of Social Security/Medicare/Railroad Retirement benefits to DAPA aliens, even if they did otherwise have standing to challenge the DAPA Guidance. Texas’s principal argument for standing is based upon its allegation that the DAPA policy will require the State to increase the number of aliens to whom it issues drivers’ licenses, thereby costing the state money it otherwise would not spend. (In a companion post, I’ll discuss a few of the reasons why this standing argument lacks merit.) The Texas agency in question has construed Texas law to require issuance of a license if an alien shows federal documentation of deferred action status or work authorization. But whether or not Texas provides such a license does not turn on whether the alien does or does not receive Social Security, Medicare or Railroad Retirement benefits. Accordingly, as the brief for amicus Prof. Walter Dellinger explains (p.25):

Respondents have not even attempted to rely on deferred-action recipients’ potential eligibility for such federal benefits as a basis for any injury they purport to have suffered. See Pet. App. 7a. Properly so. Federal administration of Social Security and like programs has nothing to do with state drivers’ licensing or the other state expenditures respondents discuss. Respondents have thus not tried to show any injury based on aliens’ potential benefits from such federal programs. Accordingly, even assuming arguendo that respondents have standing to challenge some other aspects of the Guidance, they plainly have no standing to challenge the designation of “lawful presence” and the potential ancillary extension of Social Security or other benefits to those with deferred action.

[1] In an earlier post, I argued that DAPA did not affect the lawfulness of the aliens’ conduct because the INA does not prohibit them from remaining in the U.S., even if they entered unlawfully. I continue to believe there might be some merit to that argument; the government’s clear and longstanding view, however, is that such aliens are violating the law by remaining in the United States, even though there is no penalty for such violation (other than the “specific performance” of removing such aliens and thereby ending the violation). And the Supreme Court has adopted that understanding. See Fernandez–Vargas v. Gonzales, 548 U.S. 30, 44 (2006) (referring to “the conduct of remaining in the country” as “an indefinitely continuing violation” and “illegal presence”); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999) (“a continuing violation of United States law”). Either way, the same basic point is true: The agency’s conferral of deferred-action status does not transform unlawful conduct into lawful conduct, or give the regulated parties any “dispensation” to disregard their legal duties.

[2] “Lawful presence” is also a term of art for purposes of one other discrete statutory provision, enacted a few weeks after PRWORA; but that law is even further afield from the core of the dispute in the DAPA case. A provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. § 1182(a)(9)(B), makes an alien inadmissible for three years if he departs the United States after being “unlawfully present” for over six months, and for ten years if he departs after being “unlawfully present” for over a year. That law deems an alien to be “unlawfully present” for this purpose if, inter alia, he is “present in the United States without being admitted or paroled.” Id. § 1182(a)(9)(B)(ii).

In 1997, the INS effectively construed this IRRIRA definition to include deferred action aliens as unlawfully present (and thus ineligible for the tolling periods). Without explanation, however, the INS in the Bush Administration changed that determination in 2002, thereby making such aliens nominally eligible for the tolling periods. The government endeavors to defend the merits of this 2002 determination at page 20 of its reply brief; those merits, however, are barely, if at all, germane to the case. Again, the definition of “unlawfully present” in IRRIRA is applicable is by its terms applicable only “[f]or purposes” of the IRRIRA tolling provision—not more broadly; and, in any event, it only applies, at most, to “a sliver of the population covered by the Guidance” (USG Opening Br. at 21).

Posted 8:56 AM by Marty Lederman [link]