Mon Feb 15, 2016
DAPA, “Lawful Presence,” and the Illusion of a Problem (Yale Journal on Regulation Notice & Comment)
In an essay published earlier this week, Prof. Michael Kagan expresses concern that “one aspect†of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have a valid point†when they assert that the administration’s initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals—improperly purport “to make lawful something that Congress has made unlawful.†Kagan’s concern rests principally—and possibly in its entirety—on a stray line in the memorandum issued by Homeland Security Secretary Jeh Johnson to establish DAPA and expand DACA, which states that “deferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United States†(emphasis added).