At NRO, Josh Blackman: Obama Asks the Supreme Court to Rewrite His Immigration Policy.
On November 20, 2014, President Obama announced the policy known as Deferred Action for Parents of Americans (DAPA). This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization and other federal benefits. Critically, the memorandum announcing DAPA included this sentence: “Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” (Emphasis added.)
Herein lies the conundrum: Aliens who receive relief under DAPA do not have “any form of legal status,” but at the same time they are “lawfully present in the United States.” During oral arguments in U.S. v. Texas, a perplexed Chief Justice Roberts asked Solicitor General Donald Verrilli this question: Is it the government’s position that “lawfully present does not mean you’re legally present”? Verrilli responded, “Correct.” A stunned Justice Alito stated that he didn’t “understand” how that was possible in light of the “English language.”
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Recognizing resistance from the justices, Verrilli said, “If the Court thinks it’s a problem and wants to put a red pencil through [‘lawfully present’], it’s totally fine.” He expressly asked the justices to rewrite the Obama administration’s own policy, as if the justices were the president’s copy editor.
Professor Blackman doubts this is the Court's job:
Finally, if the DAPA memorandum is so problematic, and it should not have awarded “lawful presence,” absolutely nothing is stopping the president from issuing a new policy. During oral arguments, Justice Kagan stated, “It’s [the government’s] memorandum.” That’s exactly right. The government gets to interpret it or rewrite it whenever they wish. The Department of Homeland Security could have issued a new policy — minus “lawful presence” — in February 2015 after a federal court put DAPA on hold. Or they can do so now. Absolutely nothing prevents them from doing so. Secretary Johnson — who was sitting in the first row of the Court’s gallery — could have signed a new memorandum on the spot, deleting the “lawfully present” language.
The executive branch does not need the Court to do its dirty work. Or maybe the government is telegraphing what it will do if it loses this case — simply reissue the exact same memorandum, absent the phrase “lawfully present” — so it can implement the policy before the election. If this is indeed the plan, the Supreme Court should make clear that this further evasion of the separation of powers won’t work.
Posted at 6:59 AM