DAPA, 'Lawful Presence,' and the Illusion of a Problem

Abstract

When the Supreme Court adjudicates United States v. Texas, the lawsuit challenging the Obama administration's executive actions on immigration, one focal point may be the question of whether those initiatives — Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals — impermissibly confer "lawful presence" upon their recipients. In both of his opinions for the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith went out of his way to characterize DAPA and DACA as affirmatively conferring their recipients with "lawful presence." In their briefing to the Supreme Court the plaintiffs have now followed his lead, arguing that DAPA and DACA impermissibly "transform presence deemed unlawful by Congress into lawful presence."

In this essay, I explain why these claims about "lawful presence" are incorrect and ultimately a red herring. Describing DAPA and DACA as entailing a grant of "lawful presence" 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, as a legal matter, “lawful presence” does not even exist as a thing in the sense that Judge Smith and the plaintiffs describe it. 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 conception of "lawful presence" as constituting an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration "status." That conception, however, has no actual legal basis. Ultimately, since "unlawful presence" does not carry the meaning that Judge Smith and the plaintiffs ascribe to it, there is only the illusion of a substantive problem here.

Keywords: immigration, deferred action, prosecutorial discretion, DACA, DAPA, Supreme Court