The Supreme Court will hear arguments in United States v. Texas on Monday, April 18. Here is Lyle Denniston's preview of the case for SCOTUSblog. At Defining Ideas, Michael McConnell assesses the case with sympathy for the challengers and an extensive historical discussion, concluding:
Apart from its subject matter, the executive action challenged in this case precisely parallels James II’s use of the dispensing power. The Immigration and Naturalization Act defines persons who entered this country without authorization and do not fall into any of its specific exceptions as being here unlawfully. That includes the beneficiaries of the DAPA order. Among the consequences of unlawful presence are ineligibility for work permits and for many social welfare programs. Moreover, the INA expressly provides that every day a DAPA beneficiary spends in the United States should accrue as time under the individual’s unlawful-presence clock. These consequences were set by Congress for the purpose of discouraging illegal immigration. And unlike deportation, which necessarily involves enforcement discretion, these consequences are absolute—unless there is an explicit statutory exception, these consequences apply to every person in this country unlawfully.
Under the DAPA rule, some four million people who are unlawfully present in the United States under the statute have been given the dispensation to remain and to obtain work permits and social welfare benefits. Their unlawful-presence clocks do not run. This is not mere non-enforcement. It is not an exercise of prosecutorial discretion. It is not a matter of enforcement priorities. Like James II’s dispensations, DAPA permits “an individual . . . to be lawfully present in the United States,” notwithstanding the INA’s provisions to the contrary. Until such time as it might be revoked, its beneficiaries are no longer in violation of the law. Because the executive officials who promulgated DAPA are acting outside their statutory authority, and are making lawful what Congress has declared unlawful, they are in violation of the Take Care Clause of Article II.
In the New Republic, Simon Lazerus has a different view: Even Conservatives Agree on Obama’s Immigration Powers. Will the Supreme Court? He points out:
Prominent conservative legal scholars and experts know that, as George Mason scholar and Obama critic Ilya Somin wrote at Volokh Conspiracy, “Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.” In Washington Examiner, Shikha Dalmia reminded “conservatives outraged” at the administration’s initiative that “whether they like it or not, existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners.” University of Virginia professor Saikrishna Prakash, a former law clerk for Justice Clarence Thomas and a prominent specialist on separation of powers and presidential authority, has unequivocally stated that “President Obama has not suspended or dispensed any law” and “not violated his faithful execution duty.” In the same vein, on Volokh, Case Western Reserve Professor Jonathan Adler—architect of the potentially crippling challenge to ACA tax credits rejected last year in King v. Burwell—explained that, in “[i]mmigration law … Congress has given the executive wide latitude.” (Adler signed a friend-of-the-court brief supporting the anti-DAPA challengers’ standing to bring their suit, but not their claim, on the merits that DAPA is unlawful.)
His key paragraph is this one, though:
Finally, opponents impugn DAPA because the new program authorizes its beneficiaries to apply for work authorization. But the authority for deferred action recipients to work, enroll in Social Security, and receive certain other work-related benefits comes not from DAPA, but from Reagan administrationregulations subsequently endorsed by lopsided bipartisan congressional majorities in 1986 legislation. Shortly thereafter, the Reagan administration denied a request to repeal its employment authorization regulation and it has since then been available to, and repeatedly used by, recipients of deferred action treatment, such as those covered by DAPA.
He notes two other main attacks on DAPA that I agree are unpersuasive. But this one strikes me as the potentially decisive one, and it directly engages Professor McConnell's main point. If DAPA changes peoples' legal status, as Lazarus seems to concede it does, then it must have direct authorization by statute (mere invocation of prosecutorial discretion isn't enough). But if it does have direct authorization by statute, that should be an answer to Professor McConnell's objection, and should be sufficient to uphold the policy.
RELATED: Here (via Josh Blackman) is an originalist-oriented amicus brief filed in support of the challengers, from Josh Blackman, Randy Barnett, Ilya Shapiro, Jeremy Rabin and the Cato Institute. From the core of the argument:
For two primary reasons, DAPA is inconsistent with the president’s duty to take care that the laws be faithfully executed. First, the circumstances that gave rise to DAPA demonstrate that it is not a good-faith exercise of prosecutorial discretion, but instead a blatant effort to nullify a law that the president sought unsuccessfully to repeal.
Second, DAPA is not an execution of the law, but amounts to a legislative act: the granting of lawful presence to a class of millions to whom Congress expressly denied that status. Further, DAPA is not consonant with congressional policy, nor has Congress acquiesced in it. On the contrary, it is a “measure[] incompatible with the expressed . . . will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Ordinarily, this would mean that the president could “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. But as Congress has virtually the entire power at issue here—and there are no claims of inherent executive power—that leaves the President with nothing.
Again, it seems to depend on whether Congress has authorized the granting of "legal status" (whatever that means) or not.
UPDATE: Josh Blackman has further interesting post here: SG: “Lawful Presence” is really “Tolerated Presence”.
FURTHER UPDATE: Marty Lederman comments:
Michael McConnell offers a very nice historical distillation demonstrating what no one (least of all the President) denies — namely, that the President doesn't have a dispensation power to render lawful conduct that is unlawful, or to authorize others to violate the law.
Posted at 6:15 AM