Symposium: DACA is unlawful

Elizabeth Murrill is the Solicitor General of Louisiana.

The federal government should prevail in the DACA cases for one straightforward reason: DACA is unlawful. Courts should not — indeed, cannot — stop the executive from rescinding a plainly unlawful edict that the government never had the power to issue in the first place.

DACA is the rare federal program that manages to be both substantively and procedurally unlawful. It contravenes the duly enacted substantive law of the United States. And it was promulgated without a whiff of input from the public. No matter one’s views on the policy principles motivating DACA, we should all be able to agree that the executive cannot legislate by fiat. Sacrificing separation of powers, which is embedded in the DNA of our government structure, cannot be justified no matter how much we may favor a policy.

Substantive unlawfulness

The core of DACA’s substantive unlawfulness is its grant of “lawful presence” to hundreds of thousands of aliens whom Congress has declared to be unlawfully present. In the Immigration and Naturalization Act, Congress resolved the question of who is entitled to be in this country lawfully: (1) aliens admitted as “nonimmigrant” aliens, who receive temporary permission to be lawfully present according to one of several visa categories; and (2) aliens admitted under “immigrant” visas, who have lawful permanent residence status, commonly known as possessing “green cards.” Those categories create over 40 classes of lawfully present aliens.

Congress also decided who is not entitled to be in this country: anyone “present in the United States without being admitted or paroled,” and anyone who stays here “after the expiration of the period of stay authorized by the [executive].”

When Congress has written a law declaring someone unlawfully present, the executive cannot write its own law declaring the opposite. Yet that is exactly what DACA does. When the executive grants someone a DACA permit, that person receives so-called “deferred action,” which in this context “means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” The executive has repeatedly explained that under DACA, “while [an applicant’s] deferred action is in effect,” the alien is “considered to be lawfully present in the United States.” The executive has even described DACA recipients as having “lawful status.”

Not only does DACA grant lawful presence to people who are here unlawfully, but it also grants work authorization to people whom Congress has declared ineligible for employment. In the Immigration Reform and Control Act of 1986, Congress decided which aliens may and may not work. Permitted to work are individuals falling into about 20 nonimmigrant-visa categories, plus asylum-holders, aliens granted temporary protected status and certain others. Congress also set out who may not work: aliens who entered the country illegally.

Yet DACA rewrites that statute, too. DACA authorizes its recipients to work notwithstanding the fact that they entered the country unlawfully. That may be good policy or bad policy, but we all should agree that the president cannot authorize for work those whom Congress has categorically declared ineligible for work.

Finally, DACA gives its recipients a pathway to U.S. citizenship that substantive immigration law forecloses. Congress has long provided that people who enter the country unlawfully cannot go on to be citizens. But DACA creates a loophole to that rule through what’s known as the “advance parole” process. It works like this: DACA allows its recipients to depart the country, then return to the United States. But upon that return, the DACA recipient’s re-entry to the United States is putatively lawful. So the taint of the initial unlawful entry is washed away, and the DACA recipient is no longer barred from permanent residency or even citizenship.

DACA’s defenders dress it up as a routine exercise of prosecutorial discretion. They argue that the president isn’t obligated to deport anyone, and multiple presidents have decided to forgo the deportation of large numbers of unlawfully present aliens.

But there is a line between prosecutorial discretion and legislation — and DACA is on the wrong side of it. DACA does not merely promise someone that they will not be deported. Rather, it gives its recipients substantive benefits: lawful presence, work authorization and access to advance parole. That is nothing like a case-by-case prosecutorial decision not to deport someone.

Procedural unlawfulness

DACA accomplished all of its substantive unlawfulness without public input — and that makes it procedurally unlawful.

For purposes of the Administrative Procedure Act, there should be no doubt that DACA counts as a “rule.” And, according to Morton v. Ruiz, it is a substantive rule because it “affect[s] individual rights and obligations.” As set out above, DACA grants lawful presence to people whom Congress has declared unlawfully present, and it confers on them the right to work and access advance parole. Every law student knows that when the executive seeks to promulgate and enforce a substantive rule, it first has to go through the notice-and-comment process. Everyone agrees DACA didn’t do so. So DACA is procedurally unlawful.

DACA’s defenders don’t dispute that substantive rules must run the APA gauntlet. Instead, they claim that DACA is actually just a policy statement describing the exercise of prosecutorial discretion. But those same defenders have admitted in their own court filings that “DACA confers numerous important benefits on those who apply for and are granted DACA status.” They contest DACA’s rescission because they want to avoid losing their substantive DACA benefits, yet they also claim that no such benefits exist because DACA is merely an announcement of prosecutorial discretion. The reality is that DACA is a substantive rule that was never validly implemented.

DACA was unlawful the day it was promulgated and remains unlawful today. It represents the executive’s unilateral effort to rewrite substantive federal immigration law. And its enactment violated the APA. People disagree in good faith on whether DACA is good policy. But what shouldn’t be debatable is that DACA violates the law. The executive is right to rescind it.