Listening to last Friday’s oral arguments in Texas v. U.S. through an audio recording and through the lens of immigration law was mildly satiating, somewhat frustrating and revealing about the different wavelengths on which parties were speaking.

To the extent that employment authorization is one of the greatest sources of tension around the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) debate, the Department of Justice made good points early on about the origins of the regulation providing a basis for work, and the other forms of prosecutorial discretion that provide a basis for employment like orders of supervision. DOJ also reminded the court about the relationship between deferred action and private bills, an important but understudied topic in immigration.  Finally, DOJ was consistent about clarifying how deferred action is not a formal legal status.

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Mildly frustrating were the flaws made by the state of Texas like calling DAPA a change in law and pointing to the administration for failing to abide by the congressional statute. Absent from this argument was the statutory authority for prosecutorial discretion decisions by DHS like section 103(a) of the Immigration and Nationality Act and the additional legal authorities and history for deferred action in immigration law. Likewise, Texas argued that there is “no” statute or rule that allows the government to grant lawful presence and yet there is a clear definition for (un)lawful presence in immigration law and reams of guidance documents about how this statute should be applied. Finally and consistent with how arguments have been expressed in written briefs, the state of Texas relied on the rate of denials under the 2012 DACA program to suggest that there is no discretion in the not-yet-operational DAPA program, an argument that cannot be reconciled with the fact that discretion cannot rest on the rate of denials alone, and certainly not without evidence about how the program is being processed. Many of these points are echoed in a letter signed by 104 law professors in response to the underlying district court decision enjoining the upgraded DACA and DAPA programs.

One revealing aspect of the hearing was that no one party was in agreement about how the term “deferred action” would be defined -- perhaps this was intentional. During the argument, the scope and definition of deferred action was identified in at least four different ways: 1) deferred action was interchanged with all forms of prosecutorial discretion; 2) deferred action was interchanged with “lawful presence;” 3) deferred action was defined as foregoing removal proceedings; 4) deferred action was identified as one basis for work authorization under the regulations. The use of multiple and sometimes misleading definitions of deferred action at the hearing made it nearly impossible to have a meaningful discussion. 

For its part, the state of Texas tried to explain that it was not trying to be “obtuse” about the deferred action definition but rather was following the narrative in Reno v. ADC or alternatively, the choice not to initiate removal proceedings. But “deferred action” as a term of art is narrower and linked to the affirmative decision made by the Department of Homeland Security to “grant” or “deny” deferred action. Deferred action is one of many types of prosecutorial discretion in immigration law and comes with ancillary benefits like work authorization and lawful presence (albeit from different strands of law and policy). The decision not to file a Notice to Appear (NTA) or charging document with the immigration court can in some cases serve as a favorable grant of prosecutorial discretion but it is distinguishable from deferred action. The forms of prosecutorial discretion have been outlined in several guidance documents by the immigration agency including a memorandum published in 1976 by Sam Bernsen and most recently by DHS Secretary Jeh Johnson. The Johnson Memo lists at least 15 kinds of prosecutorial discretion including “decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case.”

Even before oral arguments were made in the Fifth Circuit on July 10 around the merits of the injunction placed by a district court judge, policy pundits and lawyers forecasted an uphill battle for the administration in part and in light of the backgrounds of the assigned judges. Normally optimistic, I remain neutral about whether greater clarity will emerge further down the litigation line.

Wadhia is  Samuel Weiss Faculty Scholar, clinical professor of Law, and director of the Center for Immigrants' Rights Clinic at Penn State Law.