In distinguishing DAPA from past instances of deferred action, Texas’s reply brief cited my article which argues that these previous policies served as temporary bridges, where a lawful status was waiting on the other side of the deferral.

Nor can the Defendants find congressional acquiescence in four other deferred action programs that were even smaller than Family Fairness: (1) foreign students affected by Hurricane Katrina; (2) widows of U.S. Citizens; (3) T and U visa applicants; and (4) deferred action for VAWA self-petitioners. See Opp. 8-9. Each of those programs involved classes of immigrants who Congress — not the Executive — already had decided could remain lawfully in the United States. Deferred action was used as a stop-gap measure while the immigrants transitioned to a lawful status that had been provided by Congress. In granting deferred action status to those immigrants, the Executive Branch was implementing Congress’s will — not exercising its own by brute force. See Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 GEORGETOWN LAW JOURNAL ONLINE __ (forthcoming 2015), available at ssrn.com/abstract=2545544. … Deferred action was a bridge from one lawful immigration status to another. … Like all other instances of deferred action, this program was created for the benefit of immigrants with existing lawful status in the U.S. or at very least the immediate prospect of such status. And, like in all the other cases, the program was intended as a temporary bridge to another form of lawful status for which the aliens had already established eligibility.

Or, as I explain in my article:

Previous instances of deferred action exhibit two currents: (1) the alien has 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 immediately arising post-deferred action. These threads bring the deferred action within the ambit of Congressional policy embodied inside the INA. However, neither principle holds true to the 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.

In its sur-reply, the government responded to the Bridge argument (p. 29):

Although Plaintiffs contend that prior deferred action programs were limited to providing a “temporary bridge” to lawful status for which recipients were already eligible by statute, that was true of neither the 1990 Family Fairness Program nor 2012 DACA (which Plaintiffs are not challenging here).

What the government doesn’t say here is almost as important as what it does say. In previous briefings, DOJ recited OLC’s discussion of four specific deferred action programs: “(1) foreign students affected by Hurricane Katrina; (2) widows of U.S. Citizens; (3) T and U visa applicants; and (4) deferred action for VAWA self-petitioners.” Each of these did serve as a “temporary bridge,” as lawful status was awaiting on the other side of the deferral. The government mentions these nowhere in its 50 page sur-reply brief–with good reason. They aren’t good arguments. I wonder if the government is actually backing off these positions? Time will tell.

Instead, the government falls back on the 1990 Family Fairness program, which it underplayed in its previous filing. This policy served as a bridge of a very different type.

The government is correct that the Family Fairness program was not a bridge “to lawful status for which recipients were already eligible by statute.” But as I noted here and here, it was a temporary bridge during the 9 months between when the House enacted immigration reform,  and when the Senate would implement it. It was meant, in all respects to be temporary. Further, the aliens who were deferred were the spouses and children of those whom Congress granted relief to under the 1986 immigration reform. This is not the case for DACA, or DAPA.

The argument continues that there is no “statute or regulation” that limits discretion based on whether a “temporary bridge” exists:

Plaintiffs have cited no statute or regulation that confines the Executive’s exercise of deferred action to only providing a temporary bridge to lawful status.

The government is correct. But no statute or regulation is needed. The entire enterprise of this case focuses on whether the actions of the President are “consonant” (to use OLC’s word) with congressional policy. To determine if DAPA is consistent, courts will do what courts do–compare the present program to past programs. If all past programs are typified by serving as a “bridge,” then this is what Congress has acquiesced to. Future programs that are inconsistent with this bridge program would not fall into the acquiescence. This is the basis of Justice Jackson’s concurring opinion, which the government seeks to run away from.

Next, the government repeats the assertion that Congress has “never” limited deferred action, citing the OLC memo.

Nor could they, as Congress has long been aware of the practice of granting deferred action, including through the use of categorical framework, and has never acted to disapprove or limit the practice. OLC Op. at 18. To the extent that Congress has considered legislation that would limit the practice of granting deferred action, it has never enacted such a measure. See OLC Op. at 18 n. 9.

This simply isn’t true. Deferred action exists within a limited scope of congressional acquiescence. Part I of my series addresses this point at great length.

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 children under existing law, and misstates the limited scope of prior Congressional acquiescence to deferred action programs. These flaws undercut 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.

Finally, the government places no weight in the fact that the current Congress is attempting to “rebuke” or defund DAPA.

Plaintiffs’ contention that the House of Representatives has issued a “rebuke[]” of the Secretary’s November 20 guidance, Pls.’ Reply at 24, is irrelevant. As the Supreme Court has made clear, an unenacted bill is an unreliable indicator of legislative intent. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n. 11(1969); see also Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991).

This argument continues to ignore Justice Jackson. The Youngstown Court looked at whether Congress took any action after Truman seized the steel mills. In 1952, though Congress was silent, the Court found a violation of the Constitution. In Myers v. United States, the Court addressed the fact that Senate issued a resolution condemning President Jackson for removing on officer. In Noel Canning, Justice Breyer stressed that Congress as a body has not taken steps to repudiate inter-session recess appointments (though as Justice Scalia points, individual members have complained). Congressional condemnation as a whole after an act matters.  In a separation of powers case, a rebuke of the President’s power by Congress is evidence that the Executive acts unlawfully.

With DAPA, Congress has not been silent. They have been very, very loud.

Update: My colleague Peter Margulies, who was counsel on the brief I joined on behalf of the Cato Institute, has posted on SSRN his forthcoming article in the American Law Review, titled “The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law.” Peter discusses the Family Fairness program, and explains how it differs from DAPA. Here is an extended excerpt:

While proponents of DAPA sometimes cite the Family Fairness program implemented by immigration officials under Presidents Ronald Reagan and George H.W. Bush as precedent for DAPA,146 this analogy is inapposite. Family Fairness was ancillary to enumerated grants of status and far smaller than DAPA. Moreover, Family Fairness was within a short period ratified by Congress in the Immigration Act of 1990 – a prospect that is almost certain to elude DAPA, which has already generated substantial congressional opposition.

The administration of President George H.W. Bush heard leading legislators’ pleas and further liberalized the standard, making deferred action available to all spouses and children of IRCA beneficiaries.157 That grant of deferred action included relief from removal and work authorization while close relatives of IRCA beneficiaries waited for their visas to become current. Shortly after the McNary announcement, Congress passed the Immigration Act of 1990,158 which expressly prohibited the removal of spouses and children of IRCA beneficiaries who had entered the U.S. as of 1988 and made them eligible for work authorization. All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that relief.

In addition to being ancillary to Congress’s grant of legal status to IRCA beneficiaries, the Family Fairness program was modest in scope. As of 1989, only 10,644 people had applied for relief under the Reagan program.159 In 1990, new INS Commissioner Gene McNary predicted that the expanded Family Fairness policy would assist approximately 100,000 spouses and children of IRCA beneficiaries.160

In sum, the Reagan and George H.W. Bush deferred action programs were a bridge to a statutory grant of status in two ways. First, they stemmed from IRCA’s vast legalization initiative. Congress, in enacting IRCA, had already dealt with the biggest problem posed by immigration reform then and now: granting legal status to a large group of undocumented adults. Once Congress made it over that hump, a grant of lawful status to beneficiaries’ dependents was principally a matter of timing. Second, deferred action for this group of dependents resembled similar action taken for non-IRCA LPR sponsors whose relatives would within a bounded period be eligible for an immigrant visa. In both the IRCA and ordinary immigration context, deferred action for relatives of LPRs reduced the hardship and disruption caused by deporting relatives who could within a discrete period claim a legal status

In contrast with Family Fairness, DAPA offers work authorization and relief from removal to a huge group of foreign nationals with a long and uncertain route to legal status. Recall that unlawful entrants with post-entry U.S.-citizen children cannot even apply for an immigrant visa until their children turn 21.161 A foreign national who has been unlawfully present in the U.S. for a year or more is subject to the 10-year bar, and so must spend ten of those years outside the United States.162 That combination of protracted waiting time and prolonged enforced absence from the U.S. erects materially greater barriers to legal status than the discrete waiting period required of the spouses and children of IRCA beneficiaries. DAPA also offers work authorization and relief from removal to parents of LPRs, who have no ability under current law to petition for a parental visa.163 In its opinion supporting DAPA’s legality, OLC breezily touts prospective DAPA beneficiaries’ “prospective entitlement to lawful immigration status.”164 Given the sadly remote prospects for this cohort, OLC might as well have claimed that the narrator in The Beatles’ classic ballad, “The Long and Winding Road,” will find his beloved conveniently located in an apartment down the hall. The Beatles’ narrator was hopeful despite the odds; Congress has deliberately given prospective DAPA recipients little reason for analogous aspirations. That legislative choice is regrettable, but it is Congress’s to make.