On April 18, the U.S. Supreme Court heard oral arguments in United States v. Texas, a case brought by 26 states to challenge President Obama’s deferred action initiatives, known as expanded Deferred Action for Childhood Arrivals (expanded DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). While the arguments focused largely on standing—the legal capacity of the states to file this case in the first place—the discussion also touched on the legal basis for the President’s initiatives.

Scott Keller, the Texas Solicitor General, argued that all previous large-scale executive actions in the immigration arena have been rooted in statutory authority or intended to “bridge” periods of lawful status. Erin Murphy, on behalf of the House of Representatives, made a similar argument that no previous deferred action program had benefited a class without a path to lawful status. As Solicitor General Donald Verrilli noted, “That’s just flat wrong.”

Take, for example, the Family Fairness Program, which both Keller and Murphy hopelessly mischaracterized. In 1986, Congress passed the Immigration Reform and Control Act, or IRCA. IRCA provided a path to legal status for up to three million undocumented immigrants who had been continuously present in the United States since January 1, 1982. But it specifically did not provide relief to spouses and children who did not independently qualify. In response, the Reagan administration announced a blanket deferral of deportation for children under eighteen who were living in a two-parent household with both parents legalizing, or living with a single parent who was legalizing. The first Bush administration expanded this program in 1990 to cover all ineligible spouses and children under eighteen of legalizing family members, assuming they met certain criteria. Publicly available estimates at the time were that “Family Fairness” could cover as many as 1.5 million family members, which was approximately forty percent of the then-undocumented population.

As Tom Jawetz from the Center for American Progress has explained:

It is true that a statute existed at the time allowing certain people in deportation proceedings to be granted voluntary departure so that they could leave the country without receiving a formal order of deportation. But that statute had precisely nothing to do with the separate practice of allowing people, whether or not they were in deportation proceedings, to affirmatively request permission to remain in the country indefinitely. It is this latter practice that was called extended voluntary departure, or EVD, and — contrary to the similarity in name — it was never understood to be grounded in the voluntary departure statute itself. In fact, the final rule promulgating the regulation relies only upon 8 U.S.C. § 1103(a), a provision that grants the Secretary of Homeland Security exceedingly broad authority to “establish such regulations; … issue such instructions; and perform such other acts as [the Secretary] deems necessary for carrying out his authority” under the Immigration and Nationality Act.

Thus, as with DAPA and expanded DACA, the Family Fairness Program conferred a reprieve from deportation that was not specifically enshrined in the Immigration and Nationality Act. Similarly:

  • The Ford and Carter administrations each made grants of extended voluntary departure (the same type of reprieve from deportation used in the Family Fairness Program) to noncitizens from particular countries, including —at different times—Lebanese, Ethiopians, Ugandans, Nicaraguans, Iranians, and Afghans. While the immigration status of a number of those who benefited from these deferrals of deportation was later resolved by legislation through which they obtained lawful permanent residence, this was not true across the board. In many cases, Congress was not even considering the relevant legislation at the time EVD was granted.
  • In 1987, the Reagan Administration directed legacy Immigration and Naturalization Service (INS) not to deport Nicaraguans and to grant them work authorizations if they demonstrated a “well-founded fear of persecution,” even if denied asylum. This affected roughly 200,000 Nicaraguans. Legislation was pending at the time but had not yet passed.
  • Following the Tianamen Square massacre in 1989, the Bush Administration instructed legacy INS to defer the departure of any Chinese national in the United States through June 6, 1990 and to allow them to apply for work authorization. A subsequent executive order permitted certain Chinese nationals and their dependents to remain in the United States through January 1, 1994 and also conferred eligibility for certain other benefits.

Texas and the twenty-five other plaintiff states in this case are entitled to present their own legal arguments, but they are not entitled to create their own facts.

Photo by Mark Fischer.

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