Tuesday, April 19, 2016

U.S. v. Texas – TRUE OR FALSE? By Shoba Sivaprasad Wadhia


U.S. v. Texas – TRUE OR FALSE?

By Shoba Sivaprasad Wadhia

April 19, 2016

On Monday, April 18 the U.S. Supreme Court heard oral arguments in the case of U.S. v. Texas. The 108 page transcript from the arguments included colorful (predictable?) exchanges between eight Supreme Court justices and the lawyers- U.S. Solicitor General Donald Verrilli who represented the Administration; Thomas Saenz, supporting undocumented mothers of children who are U.S. citizens; Texas Solicitor General Scott Keller, arguing for the states; and Erin Murphy, representing the U.S. House of Representatives against the Administration. Here I offer a short “True or False” exam – call it a prelude to the final exams in the coming weeks that my colleagues and I will proctor on the complex topic of immigration law. Highlighting this complexity is Justice Alito who at the oral arguments remarked, “And how is it possible to lawfully work in the United States without lawfully being in the United States…I’m just talking about the English Language. I just don’t understand it.” (p. 28)

True or False?

SG KELLER: “But here, with deferred action they’ve only --- the Executive has only been granting 500-1000 deferred action permits a year.” (p.48)

ANSWER: False: Deferred action enjoys a long history that pre-dates President Obama’s Administration. As detailed here, thousands have applied for and received deferred action for largely humanitarian reasons. As eloquently told by SG Verrilli during the oral arguments in describing the recipients of the President’s deferred action programs: “This class of aliens is the lowest priority. And there is a pressing humanitarian concern in avoiding the break up families that contain U.S. citizen children.” (p. 3)


SG KELLER: “That lawful presence phrase is key because that’s the first time in a deferred action program the Executive has taken that position.” (p. 51)

ANSWER: False. For far more years than the life of this lawsuit, the Administration has taken the position that persons in deferred action will not accrue “unlawful presence” and will be treated as “lawfully present.” Perhaps more importantly, “lawful presence” is not the same thing as “lawful status” -- not even close. This point has been highlighted in many places including a letter by 104 law professors in reaction to this lawsuit. “The lawful presence awarded to deferred action recipients is a modest aspect of deferred action with its own statutory basis. The limited significance of unlawful presence is that it determines whether the person’s presence will trigger future inadmissibility when he or she departs. In contrast, lawful status, which neither DAPA nor DACA would grant, is associated with whether a person’s status is secure or liminal.”


JUSTICE KAGAN: [I]t seems to me your real gripe here--- and you—maybe it’s a real gripe your real grip here is to the work authorization piece the benefits pieces, is that right? (p. 53)

ANSWER: True. But this gripe has no legal or historical home. The statute and regulations that govern employment for certain prosecutorial discretion beneficiaries are clear and unexceptional. This article describes how work authorization has enabled hundreds of thousands of individuals with prosecutorial discretion to apply for work authorization under the regulation promulgated in 1987. Beyond those who have applied for employment pursuant to a prosecutorial discretion grant, SG Verrelli describes how additional categories of noncitizens have applied for and received work authorization pending an application an adjustment of status or relief under cancellation of removal, highlighting the different categories of people who receive work authorization. (p. 29-31) Perhaps this prompted Justice Kagan to argue “But then it seems to me …what you should be attacking is not DAPA. What you should be attacking is the work authorization regulations that DHS, or before that the INA, has had for 30 years.” (p. 55).



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