The case is centered on whether the Obama administration has the authority to implement the Deferred Action for Parents of Americans and Lawful Permanent Residents initiative (DAPA), and to expand the Deferred Action for Childhood Arrivals initiative (DACA). DAPA and expanded DACA would affect unauthorized immigrants who are either the parents of U.S. citizens or green card holders, or who came to the country many years ago as children.
Buried in a section of the brief that evidences their complete misunderstanding of these deferred action policies, the states admit that the Department of Homeland Security, or DHS, does have the legal authority to set immigration enforcement priorities, and to choose not to remove people who are a low priority for removal. Importantly, the brief continues, DHS would be well within its authority to “issue ‘low-priority’ identification cards to aliens.”
But that is precisely what happens when a person receives “deferred action” through DAPA and expanded DACA. In fact, what we now call “deferred action” was described as the “nonpriority program” in a 1975 guidance issued by the Immigration and Naturalization Service, the predecessor to DHS. Everything old is new again.
In other words, Texas no longer questions whether DHS can allow low-priority unauthorized immigrants to remain in the country temporarily. Instead, Texas insists that they must not be allowed to work legally while they are allowed to be here.
Let’s break that down a little bit.
Certainly, Texas is right to acknowledge that the administration has the authority to grant deferred action. In 1999, the late-Justice Antonin Scalia recognized that “[a]t each stage [of the deportation process] the Executive has discretion to abandon the endeavor” and described deferred action as “a regular practice . . . of exercising that discretion for humanitarian reasons or simply for its own convenience.” As recently as 2012, the Supreme Court — in an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts — affirmed that the “broad discretion” granted to immigration officials extends to “whether it makes sense to pursue removal at all.”
It is just as clear that the administration may allow individuals who received deferred action to apply for authorization to work. Immigration officials have been granting work authorization to unauthorized immigrants allowed to remain temporarily in the country since at least the early 1970s —that is, for at least 45 years. And that is particularly well-settled with respect to immigrants granted deferred action. In fact, the current legal authority that describes the process for granting work authorization to people granted deferred action was adopted by regulation in 1981, codified into immigration law in 1986, and reaffirmed by the INS in 1987 — all under President Ronald Reagan. Congress has done exactly nothing to challenge that authority in the last 30 years.
Aside from being contrary to law, this position of Texas is also contrary to logic. Right now, much of our economy and entire industries like agriculture are supported by immigrant labor; unauthorized immigrants alone make up 5.1 percent of the nation’s labor force. That is an inconvenient truth and one that Congress needs to remedy for the good of the nation.
The people who are eligible for these deferred action policies are particularly well-settled in our communities and in our national, state, and local economies. Nearly 70 percent of the people who would be eligible to apply for DAPA have lived here for ten years or more, and a full quarter have lived here for at least 20 years. Because they are supporting their families, including more than 6.1 million U.S. citizen relatives with whom they live, most of them also are in the labor market — 95 percent of potential male applicants and more than 50 percent of potential female applicants.
Saying that millions of hardworking immigrants can remain in the country temporarily — but not work lawfully — is irrational: how are they supposed to support themselves and their U.S. citizen children? Having the breadwinners in millions of American households drop out of the labor force for the duration of their period of authorized stay in the country would be devastating to these families and to the economy more broadly. Of course they will continue to work, but in doing so they will continue to be subjected to illegally low pay and dangerous working conditions by unscrupulous employers, which is bad for all workers (including American workers), bad for families, and bad for businesses that are trying to play by the rules. The position advanced by Texas would put an official seal of approval on the status quo, effectively sanctioning widespread unauthorized employment.
Texas’s decision to no longer challenge the granting of deferred action and to focus only on “the Executive’s affirmative granting of lawful presence and work authorization” doesn’t just doom its lawsuit on the merits. It also pulls the rug out from under the state’s already attenuated claim that it has suffered an “injury-in-fact” required to bring the case in the first place.
The court below held that the only reason Texas has legal standing to bring this suit in federal court is its claim that issuing driver’s licenses to DAPA and expanded DACA beneficiaries would cost the state “several million dollars.” Ignore for a moment the ample and uncontested evidence that the economic benefits to the state actually would far outweigh those costs. It is Texas law that requires driver’s license applicants to present documentation demonstrating that the applicant is authorized to be in the United States, and it is Texas’s choice to accept a grant of deferred action as sufficient proof of that lawful presence.
But work authorization and lawful presence for purposes of federal immigration law — the only things Texas is now challenging in this case — are completely immaterial to the state’s alleged injuries. So even if the state had the standing to challenge the deferred action policies themselves, they have already conceded that DHS acted lawfully in adopting those policies, and they have presented no basis whatsoever upon which a court could find that they have standing to challenge anything else in the case. This eliminates any doubt that this is a policy dispute masquerading as a lawsuit, and should be thrown out of court.
It’s not always true that the final briefs filed in a case really help to resolve the remaining issues. But in just a few lines, Texas abandoned the already-flawed legal basis for its challenge to these immigration policies. If this case is decided on the law, it shouldn’t even be close.
Tom Jawetz is the Vice President of Immigration Policy at the Center for American Progress.