Legal Scholars Debate the Constitutionality of the DAPA Program

Although most immigration law scholars think that President Obama’s deferred action programs fall within the Executive’s statutory and constitutional authority, a difference of opinion has emerged over the use of the term “lawfully present” to refer to beneficiaries of the DAPA program. In a blog post, Michael Kagan, Associate Professor at the University of Nevada’s Boyd School of Law, warned that the Supreme Court could fixate on that term, which appears in the administration’s original memorandum on the subject,  as a sign of executive overreach, and rule in favor of the State of Texas and other litigants who have argued that the President has arrogated to himself a power that belongs to Congress. Wrote Kagan, “it seems as if the Executive Branch is trying to make lawful something that Congress has made unlawful.”

Kagan hastens to add that the administration’s case doesn’t hinge on what may be the careless use of this phrase. For example, there is ample legal precedent for considering work authorization for immigrants, granted under deferred departure, as something separate and apart from lawful presence. Moreover, the term “lawfully present” wasn’t used by the administration when it announced the original DACA program. Arguing that lawful presence can be revoked, as the administration has done, doesn’t reverse the illegality of the original grant. Kagan believes that it will be crucial for the administration to stress that deferred action and lawful presence “are actually two separate things,” so that the baby of deferred action isn’t thrown out with the bath water of lawful presence.

Kagan’s interpretation of the case, however, is challenged in a paper by Anil Kalhan of the Drexel University School of Law. He argues that the “claims about ‘lawful presence’ are incorrect and ultimately a red herring.” Lawful presence, as an “intertwined package of benefits,” is not what is being offered. Indeed, these words carry no meaning under immigration law. The “stray reference” to lawful presence “cannot serve as a plausible basis for calling the validity of the DAPA guidance, write large, into question.”

In the meantime, there has been some speculation as to the impact of the death of Supreme Court Justice Antonin Scalia on the court’s consideration of the Texas challenge. Writing in a blog for the American Immigration Council, Beth Werlin concludes that his passing will have little impact on the outcome, as he was expected to vote against the President anyway. However, Shikha Dalmia, Senior Fellow at the libertarian Reason Foundation, sees Scalia’s death as a potential loss for immigrant advocates, as he had “no inherent animus against immigrants” and might have ruled with the administration on strict constructionist grounds.