Mon Feb 15, 2016 by Anil Kalhan
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 â€œone aspectâ€ of the Obama administrationâ€™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 â€œhave a valid pointâ€ when they assert that the administrationâ€™s initiativesâ€”Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivalsâ€”improperly purport â€œto make lawful something that Congress has made unlawful.â€ Kaganâ€™s concern rests principallyâ€”and possibly in its entiretyâ€”on a stray line in the memorandum issued by Homeland Security Secretary Jeh Johnson to establish DAPA and expand DACA, which states that â€œdeferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United Statesâ€ (emphasis added).
Kagan is likely correct in predicting that the plaintiffsâ€™ assertions about â€œlawful presenceâ€ may become a focal point now that the Supreme Court has granted certiorari. In both his initial May 2015 opinion denying the governmentâ€™s motion for a stay pending appeal (as I discussed here) and his subsequent November 2015 opinion affirming the district courtâ€™s preliminary injunction, U.S. Circuit Judge Jerry Smith went out of his way to characterize DAPA and DACA as affirmatively conferring their recipients with â€œlawful presence.â€ In their brief in opposition to certiorari, the plaintiffs have now followed his lead. Read superficially and in isolation, the sentence that Kagan highlights might seem to support that characterization. (By contrast, the memorandum establishing DACA issued by Johnsonâ€™s predecessor, Janet Napolitano, makes no reference to â€œlawful presenceâ€ or â€œunlawful presenceâ€ at all.)
Ultimately, however, describing DAPA and DACA as entailing a grant of â€œlawful presenceâ€ mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, in order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a unitary but entirely mistaken conception of â€œlawful presenceâ€ itselfâ€”one that constitutes an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration â€œstatusâ€â€”that has no actual legal basis. Kaganâ€™s attention to the plaintiffsâ€™ claim about â€œlawful presenceâ€ is amply warranted, and he is correct in suggesting that the government may have contributed to these misunderstandings. Nevertheless, there is only the illusion of a substantive problem here, because as a matter of law, â€œunlawful presenceâ€ simply does not carry the meaning that Judge Smith, the plaintiffs, and (possibly) Kagan himself ascribe to it.