The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action
31 Pages Posted: 6 Jan 2015 Last revised: 25 Apr 2015
Date Written: January 5, 2015
On November 19, 2014, the Department of Justice’s Office of Legal Counsel issued an opinion entitled “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others.” The opinion justified two new initiatives by the Department of Homeland Security. First it dealt with the prioritization of removal of certain categories of aliens unlawfully present in the United States. The second initiative established a deferred action program for the parents of U.S. citizen or lawful permanent resident children. OLC’s opinion is of great practical importance for both general and specific reasons.
As a general matter, the framework it instituted for gauging whether a particular exercise of enforcement discretion is consistent with relevant constitutional principles is likely to have continuing importance in all areas where administrative agencies exercise discretion. As a specific matter, it seeks to place the Obama Administration’s immigration initiatives on firm legal footing by justifying those broad programs as valid exercises of enforcement discretion.
The opinion founders, however, on the complexities of immigration law, and thus its specific application of the opinion’s framework to the Executive’s initiatives is ultimately unconvincing. The opinion overstates the degree to which the Immigration and Nationality Act (INA) is concerned with family unification, misapprehends the extraordinarily narrow scope of relief provided to the parents of U.S. citizen and lawful permanent resident (LPR) children under existing law, and misstates the limited scope of prior congressional acquiescence to deferred action programs. These flaws undermine the opinion’s key conclusion that DHS’s deferred action programs are consistent with congressional policy, and thus also place into question the ultimate judgment that these initiatives are permissible exercises of enforcement discretion.
This article’s scope is narrow and means to address only the question of whether or to what extent deferred action for the parents of U.S. citizen and lawful permanent resident children is consistent with congressional policy as currently embodied by the INA.
Part I reviews the two most recent discretionary initiatives, the so-called Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs. Part II turns to OLC’s opinion on the legality of DAPA, analyzing its conclusion that DAPA is consistent with congressional policy. First, OLC contends that DAPA is an extension of congressional policy towards family unity. Second, OLC explains that Congress’s past acquiescence in or extension of administrative deferred action initiatives supports DAPA. Both propositions are premised on misleadingly superficial readings of congressional policy in this realm, and fail to justify DAPA.
Part III critiques OLC’s conclusion on these points, while placing the all-important flesh on the skeletal version of immigration law contained in that opinion. Previous instances of deferred action exhibit two currents: (1) the alien had an existing lawful presence, or (2) the alien has the immediate prospect of lawful residence or presence. For each, deferred action acted as a temporary bridge from one status to another, where benefits were construed as arising immediately post-deferred action. These threads bring the deferred action within the ambit of congressional policy embodied inside the INA. However, neither limitation holds true for DAPA. With DAPA, deferred action serves not as a bridge for beneficiaries between two approved statuses, but as a tunnel to dig under and through the INA.
DAPA represents a fundamental rewrite of the immigration laws that is inconsistent with the congressional policy currently embodied in the INA. To the extent that DAPA’s constitutionality rests on congressional acquiescence, OLC has failed to make its case.
Keywords: DAPA, DACA, Immigration, Constitutionality
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