Justice Deferred

Justice Deferred

Obama’s executive orders on immigration, currently pending at the Supreme Court, would relieve millions of immigrants of the worst burdens of undocumented life. But no matter how the Court rules, even the immigrants who qualify for DAPA and DACA will remain in legal limbo.

President Barack Obama talks on the phone with Solicitor General Donald Verrilli, 2012 (Official White House photo by Pete Souza)

There is an immigration crisis in this country. But it’s not the imagined crisis of a border crossed by hordes of undesirables, promoted by Donald Trump and other Republicans to stoke racism and fear. Since the 2008 recession, net migration from Mexico has actually been below zero, and the overall population of undocumented persons in the United States has declined. A crisis exists because there is still an estimated 11.3 million undocumented immigrants in the country. Many of them have family members who are citizens or legal permanent residents. They live in constant fear of deportation and family separation. This is a crisis that shapes daily life for millions of people in this country.

In United States v. Texas, the Supreme Court is now deciding whether to uphold President Obama’s executive program, Deferred Action for Parents of Americans (DAPA), which would defer deportation for upwards of four million people. Last month during oral arguments on the case, the Solicitor General Donald Verrilli, Jr., defending DAPA, explained that the Department of Homeland Security must establish priorities for removal because Congress only has funds for 400,000 deportations a year. The following exchange ensued:

Justice Sotomayor: So we have—we have basically 10,900,000 people that cannot be deported because there’s not enough resources, correct?

Solicitor General Verrilli: That’s correct.

Sotomayor: So they are here whether we want them or not.

Verrilli: And the key point is that we have always had a policy that says when you have—when your presence is going to be officially tolerated, you’re violating the immigration laws by being here. You don’t have any rights, but your presence is going to be tolerated. When you’re in that circumstance, we allow you to work because it makes sense to allow you to work. Because otherwise—you’re going to be here, and otherwise, if you can’t work lawfully, you’re going to either not be able to support yourself and be forced into the underground economy. We’ve had—

Chief Justice Roberts: I have to ask you about two pages in your reply brief. On page sixteen, you quote the Guidance that says, “The individuals covered are lawfully present in the United States.” And less than a page later you say, “Aliens with deferred action are present in violation of the law.” Now, that must have been a hard sentence to write. I mean, they’re—they’re lawfully present, and yet they’re present in violation of the law.

Verrilli: I actually had no trouble writing it, Mr. Chief Justice.


Verrilli: The reason I had no problem writing it is because that phrase, “lawful presence,” has caused a terrible amount of confusion in this case; I realize it. But the reality is it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way. . . . At that fundamental level, we are not trying to change anybody’s legal status on the immigration—

Roberts: Lawfully present does not mean you’re legally present in the United States.

Verrilli: Right. Tolerated—

Roberts: I’m sorry, that—just so I get that right.

Verrilli: Yes.

Roberts: Lawfully present does not mean you’re legally present.

Verrilli: Correct.

Justice Alito: But they are—the DAPA beneficiaries are—may lawfully work in the United States, isn’t that correct?

Verrilli: That’s right.

Alito: And how is it possible to lawfully work in the United States without lawfully being in the United States?

Verrilli: There are millions of people, millions of people other than the DAPA recipients about whom this is true right now. . . .

Alito: I’m just talking about the English language. I just don’t understand it. How can you be—

Verrilli: Well, let me—

Alito: How can you be—how can it be lawful to work but not lawful to be here?

The confusion—about the distinction between “lawfully” working in the country, and “legally” being in the country—lies at the heart of the legal and political conundrums surrounding DAPA. The program has solid legal and historical precedents. But in an effort to invalidate DAPA, Texas, joined by twenty-five states, sued the United States for imposing unwanted and burdensome costs, in particular, the cost of granting additional driver’s licenses to DAPA recipients, an ancillary benefit of deferred action. Implementation of DAPA has been stalled as the case made its way to the Supreme Court.

DAPA—like Deferred Action for Childhood Arrivals (DACA), which President Obama ordered in 2012—aims to afford relief to long-time undocumented migrants with strong ties in the country. DACA and DAPA are stop-gap measures taken in the absence of Congressional reform of the immigration laws. While entirely within executive authority, they fall short of fixing the problem of unauthorized migration. That problem can only be resolved in one of two ways—removal or legalization. Despite what Trump’s anti-immigrant rhetoric might suggest, neither Congress nor the public desire mass removals. Polling data indicate that a majority of Americans support legalization and a path to citizenship. But the right-wing faction in Congress has obstructed immigration reform for more than a decade.

DAPA recipients would be able to live without the constant fear of deportation. They would be able to work, have a social security number, and receive nominal benefits like a driver’s license. They’d be able to travel without worrying about reentering the country. For the undocumented, these measures would make an enormous difference.

But we should be clear that it is not enough. DAPA and DACA suspend their holders in an indeterminate state. They are out of the shadows, perhaps, but not entirely. As some of the exchanges in the Supreme Court showed, even though DAPA recipients would not be deported, now, they would still lack legal status. They also would not be eligible for health insurance under the Affordable Care Act or other federal public benefits.

They remain impossible subjects, whose inclusion in American society is a material and social fact but denied by the law. The official stance of the government as expressed by Solicitor General Verrilli before the Court—“You don’t have any rights, but your presence is going to be tolerated”—betrays the law’s fundamental hostility toward the undocumented. Chief Justice Roberts and Justice Alito are not dumb. Their performed incredulity at the paradox of lawful but illegal presence expressed their view that once illegal, always illegal. In fact, there is a long history of government action that has legalized the status of undocumented people. In the past, legalization has normatively meant legal permanent residence and the prospect of citizenship. That the present executive actions cannot go that far is a problem of politics, not law.

DACA and DAPA aim to ameliorate the plight of the undocumented by issuing a document that “tolerates” their presence; it is a document that brands them anew as illegal. A future president could cancel deferred action, leaving those who came forward exposed and liable to be deported. Individuals who live in this liminal state understand the stakes involved. College students in my classes know the difference that DACA makes in their lives—they can work, get a driver’s license, open a bank account, travel—but they still self-identify as “undocumented.” Many of them have parents who are potential DAPA beneficiaries. Trump’s threats make them nervous, edgy. They ask me which way the Court will rule. I tell them I don’t know. I do know that regardless of the decision, the struggle will continue.

Last fall, one of my students wrote an essay about the problem of documenting the undocumented. To apply for DACA, he had to provide evidence that he had been in the country since 2007. He submitted documents that his mother had carefully and lovingly kept—from a certificate acknowledging his participation in a kindergarten school play to his acceptance letter from Columbia—documents that “serve to justify my belonging, to keep me from being forgotten and to leave a trace of myself in America.” But, the document he got, the work authorization card, “told me that I did not belong. For government officials, the document serves to exclude me from belonging.”

Mae Ngai is Professor of History at Columbia University.