Since its inception, DAPA’s achilles heel has been a single sentence in Sec. Johnson’s memorandum announcing the executive action:

Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.

A key element of Texas’s substantive-reasonableness, and Take-Care-Clause arguments, centers on the emphasized portion: “Lawfully present.” Texas argues that DAPA is not merely a grant of deferred action and work authorization. It goes beyond that to deem an alien who is not lawfully present, as lawfully present. Or stated differently, DAPA makes legal what is otherwise illegal. Texas explains this at p. 39 of their merits brief:

DAPA’s granting of lawful presence and eligibility for valuable work authorization and benefits forecloses the Executive’s reliance on Heckler.29 As defendants’ counsel acknowledged below, DAPA “works in a way that’s different than . . . prosecutorial discretion” be- cause it grants inducements “for people to come out and identify themselves.” J.A. 716.

As I noted last April, Judge Hanen seized on this concession from the DOJ Federal Programs attorney–which I suspect the SG wishes he could take back.

The Government has acknowledged that its strategy with DAPA is to provide certain benefits as an incentive for individuals to apply for DAPA. [Hr’g Tr. 30, Mar. 19, 2015]. It also confirmed, through counsel, that offering these incentives is not an act of prosecutorial discretion: “I think an incentive for this pro – – the reason why deferred action in the department’s judgment works in a way that’s different than the prosecutorial discretion is it does provide an incentive for people to come out and identify themselves.” [Id. (emphasis added)].

(I elaborated on this point in National Review.).

DAPA was always about far more than prosecutorial discretion and granting of deferred action–the government has conceded as much.  As Sec. Johnson’s memo stated, it was about granting lawful presence.

Since making this concession, the government has tried to run away from this position, and minimize the significance of “lawful presence.” Indeed, in the SG’s merits brief, the phrase “lawful presence” appears (by my count) once.

That fundamentally misunderstands the term “law- ful presence.” Insofar as deferred action itself is concerned, “lawful presence” simply describes the result of notifying an alien that DHS has made a non- binding decision to forbear from pursuing his removal for a period of time: He may remain present in the United States without being removed, for so long as DHS continues to forbear. p. 37.

In the reply brief, the SG further expands on their argument. First, they explain that if Sec. Johnson had deleted the provision about “lawful presence” from the memo, it would make no difference:

That sentence is purely descriptive and has no operative, legal effect. Ibid. Deleting it would not change the Guidance at all.

Yes, but that sentence is in there–and it was not in the DACA memorandum. Why was it added? What does it add to the situation? And the government lawyer below made clear that DAPA–with its grant of lawful presence–operates in a different fashion than traditional prosecutorial discretion and deferred action.

Second, the SG concedes that it should have probably used different language–rather than “lawfully present,” the Secretary should have said “tolerated presence.”

By contrast, mere “lawful presence” occurs when the Executive “openly tolerate[s] an undocumented alien’s continued presence in the United States for a fixed period (subject to revocation at the agency’s discretion),” notwithstanding that the alien lacks lawful status and is present in violation of law. J.A. 76; see U.S. Br. 38-39; Unlawful Presence Guid- ance 9-11. “Lawful presence” thus might be better called “tolerated presence.” 

I have been following this litigation pretty closely from the outset, and I don’t recall ever seeing the phrase “tolerated presence” at any stage. This is a new trick the SG held in reserve for the reply brief. Is the Solicitor General pulling for yet another saving construction? If we disregard the actual text of the policy, and replace it with a word that fits the government’s argument, then poof, it is valid! May as well make this an annual tradition at First Street. Look for SG Verrilli to use the word “tolerated” a lot at oral arguments, and push back against lawful presence. At a minimum, I think the SG’s statement here suggests that this a vulnerability, which the government is trying to shore up.

Offering another defense of “lawful presence” is Marty Lederman, who takes a page out of the SG’s toolkit. Marty writes that “lawful presence” is actually a term of art based on a 1996 regulation. (I am having flashbacks to King v. Burwell writing this). Here is a segment of Marty’s careful argument, that I encourage you to read carefully:

But how did we get here, to a point of such fundamental confusion?  Why does the DAPA Guidance say that a DAPA alien “is permitted to be lawfully present in the United States,” if in fact she is not permitted to be here?   And if, as the government now concedes, “‘[l]awful presence’ . . . might be better called ‘tolerated presence,’” why didn’t DHS simply refer to it as “tolerated presence” in the first place?

The source of the confusion is yet another longstanding regulation—this one “only” two decades old, having been promulgated in 1996.  That regulation deals exclusively with the conferral of certain federal benefits that are peripheral to the dispute in this case.

…

Regardless of the substantive merits of the 1996 regulation, the important point for present purposes is simply that that discrete Social Security/Medciare/Railroad benefits rule is the source of DHS’s decision to describe DAPA aliens, and other deferred-action and deferred-enforced-departure aliens, as “lawfully present” in the United States—despite the fact that their presence is not lawful.  The terms of the 1996 regulation in effect establish “lawful presence” as a de facto term of art, applicable only for purposes of determining which aliens are entitled to receive Social Security, Medicare and Railroad Retirement benefits.  As the original Federal Register notice specified, “[t]his definition is made solely for the purpose of determining an alien’s eligibility for payment of title II social security benefits, as required under section 401(b)(2) of the Personal Responsibility Act, and is not intended to confer any immigration status or benefit under the Immigration and Nationality Act.”[2]

As best as I can recall, I’ve never seen this argument about the 1996 regulation before–not in the OLC memo supporting DAPA’s legality, nor in any of the District, Circuit, or Supreme Court briefing. (If I’m wrong, please correct me). I’ll try to dig into the regulation before arguments on Monday.

So if “lawful presence” trips up the government, they can always fall back on a saving construction by rewriting the actual text of the policy (“lawful” becomes “tolerated”), or the Court can deem lawful presence a “term of art” based on a 1996 regulation that was never raised at any point during the litigation. We’ve been here before.