Solicitor general: There is no basis in federal law to give work permits to DACA recipients

November 14, 2019

The Supreme Court recently heard oral arguments to determine the fate of the Deferred Action for Childhood Arrivals (DACA) program, according to the Los Angeles Times — and one of the central issues addressed was the legality of issuing work permits to DACA recipients, with the Trump administration contending that there is no basis in existing federal law to allow it.

Indeed, Ted Olson, the chief lawyer representing the DACA recipients, seemed to have great difficulty citing any truly relevant federal law to support his clients’ position on the matter — or even acknowledging the Trump administration’s stance on the question — something that was glaringly evident from statements he made to the media outside the court.

Grasping for legal authority

“The Congress of the United States has passed a statute that says if a person is in a deferred action category, that person may be given — and there’s federal regulations and federal statutes — that person may be given authorization if they apply for it, if they meet all of the standards,” Olson can be heard saying in the aftermath of oral arguments in a video posted by Breitbart.

“And it makes perfect sense,” Olson continued, “that someone the administration has decided is not going to be deported is in a position to support himself or herself or their family and be a part of the community rather than be dependent upon the government.”

He went on: “So once the decision is made there are statutes and regulations that authorize the application for permission to work, and those are laws which the government hasn’t even challenged.”

Yet, when a reporter asked him which statute provides the work permit law, Olson was less than certain.

“Well, we’ll get that to you — I don’t have it,” he admitted. “We’ll get you the actual citation of the statute. Believe me,” he said, motioning towards the Supreme Court building, “no one challenged that in there.”

Mischaracterization of events

However, a look at the day’s transcripts shows that Olson’s contention simply isn’t true, with Breitbart reporting that Solicitor General Leon Francisco did indeed challenge the DACA recipients’ claim.

“The theory on which DACA rests effectively allows the government to create a shadow [Immigration and Nationality Act] INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA. And you, at the very least, need to locate something in the INA that confers that kind of broad and unfettered discretion. And there is simply nothing there,” Francisco argued, according to Reason.

What’s more, he explained the issue wasn’t simply one of prosecutorial discretion.

“My second point is that DACA goes far beyond simply diverting resources to higher priority targets — which you are absolutely right, every law enforcement agency has to divert resources to higher priority targets,” the solicitor general said.

He went on: “DACA goes materially further than that because it actively facilitates violations of the law by providing advance forbearance, coupling it with affirmative benefits like work authorization and Social Security benefits, doing it on a categorical basis. And, significantly — and this was my third point — it has no limiting principle.”


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Adam Peters

Adam Peters is a Conservative Institute staff writer.