The labor rights of four million migrants hang in the balance at the Supreme Court
The Supreme Court deserves praise for agreeing to review United States v. Texas, a case that will determine the fate of the most significant of the executive immigration actions announced by the president on November 20, 2014. The Court will review a lower court’s decision that temporarily blocked President Obama’s Department of Homeland Security (DHS) guidance directive that “establish[es] a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents” (hereinafter referred to simply as “Guidance”). The Supreme Court will decide whether the president overstepped the bounds of his legal authority when DHS issued this Guidance.
More specifically, the Guidance in question would defer the deportation of unauthorized immigrants who are the parents of children who are either U.S. citizens or legal permanent residents, have resided in the United States for at least five years, and are not a DHS enforcement priority for deportation. This is known as the “DAPA” initiative, Deferred Action for the Parents of Americans and Legal Permanent Residents. The Guidance would also update and expand “DACA,” the Deferred Action for Childhood Arrivals initiative (in place since 2012), which to date has provided deferred action to over 660,000 persons who entered the country as young people without authorization. Combined, over five million persons could be eligible for DAPA, DACA, and expanded DACA (sometimes referred to as DACA+), out of a total unauthorized immigrant population of 11 million.
Unauthorized immigrants with deferred action have been told by the government, in essence, that they will not be deported during a set period of time (two or three years at a time in the case of DACA or DAPA). Those with deferred action are also considered to have “lawful presence” in the United States (but not “lawful status”) and are entitled to receive an employment authorization document (EAD), allowing them to be employed in the United States, along with certain other benefits. As I’ve written before, the granting of an EAD to deferred action recipients is clearly authorized by statute, which is probably why the issue wasn’t raised in the lower courts in United States v. Texas. But if the 26 plaintiff states in the case can stop President Obama from providing deferred action to four to five million unauthorized immigrants, then they will in effect keep four to five million long-term residents of the United States from having the ability to work legally.
By pursuing this course of action, the 26 plaintiff states are actually harming themselves, and harming the U.S. citizen and legal permanent resident workers in those states by denying access to labor protections to the unauthorized immigrants who work there, too. The 26 attorneys general should recall that the vast majority of unauthorized immigrants in the United States are not recent arrivals. In fact, nearly two-thirds have been in the country for more than 10 years, and one-fifth have been in the United States for two decades. This trend is likely to continue, since the unauthorized population isn’t growing; in fact, new data show it’s shrinking. The subset of the unauthorized population that will qualify for deferred action either entered the United States as children, or have their own children who are U.S. citizens or legal permanent residents and have been in the country for at least five years, which means they’re likely to be deeply integrated into their local American communities and labor markets. DAPA and DACA recipients also cannot be on the list of DHS priorities for removal, which means they’re not criminals, making it unlikely that they would be deported from the United States anytime soon.
In addition, most unauthorized immigrants are employed, but because they lack work authorization, cannot effectively complain when they are paid below the minimum wage or aren’t paid for overtime hours, or when their employer subjects them to unsafe conditions at the workplace. Unauthorized immigrants can’t complain because they know employers can call immigration authorities —that fear keeps unauthorized workers docile and quiet, which in turn diminishes the bargaining power of Americans who work alongside unauthorized workers. The Solicitor General stated this principle succinctly in his petition to the Court:
…the Guidance only covers parents and children who have “long ties to the community,” ibid., deferred action and work authorization will make these individuals more likely to be self-reliant and pay taxes, and less likely to harm American workers by working for below-market wages.
To recap, DAPA- and DACA-eligible persons are, by definition, low priorities for deportation, which means they will remain residents of the United States for the foreseeable future. Preventing them from getting deferred action and an EAD means they’ll continue to be exploitable workers, and although many are in fact on formal payrolls, a large number still work off the books and their employers do not contribute to the social safety net. On the other hand, unauthorized immigrants who possess an EAD can work without fear of deportation, giving them access to the labor and employment laws that protect citizens and let them organize with other workers and bargain for higher wages—and their employers must fully contribute to the American social safety net. Keeping them exploitable, as Texas and 25 other states seek to do, only benefits rogue employers and corporations while degrading labor standards for all workers.
The decision in the case, however, will depend on the Supreme Court’s consideration of four legal issues. First, the Solicitor General requested that the Court consider these three:
Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
Whether the Guidance was subject to the APA’s notice-and-comment procedures.
It’s impossible to know how the Court will rule on these questions, not least because courts can devise almost any rationale for any ruling that is based on the APA. In fact, that’s exactly what Judge Hanen did in this case at the district level, in a decision that was widely criticized. Since the law and facts weren’t on his side, Hanen issued an injunction against DAPA and DACA+ and opined that the Guidance should not go into effect because it first needed to go through the APA’s formal notice and comment procedures. In theory, the Obama administration has a decent chance to prevail in United States v. Texas because the executive branch has limited resources to enforce immigration laws and, thus, retains a broad degree of prosecutorial discretion to prioritize enforcement actions and to decide whom to deport first or last.
In its grant of certiorari on January 19, the Supreme Court added a fourth question to the list on its own, presumably to deal with all the relevant issues implicated by the litigation all in one case: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” The Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” I won’t go into the legal theories on this question, but it’s worth noting, as David Bernstein recently argued, that the Supreme Court has never examined or ruled on what limits the Take Care Clause might impose on the executive actions of a president. Ultimately, that means the fate of millions of vulnerable workers in the American labor market may rest on the opinion of an ultra conservative Supreme Court that is operating in uncharted legal territory.