Back to Immigration Basics:
Why the DAPA/DACA Case is Simpler Than it Seems

This week, SCOTUSblog is publishing a multi-part online symposium on United States v. Texas, a challenge by Texas and twenty-five other states to the Obama administration’s deferred action initiatives.

The Council’s Legal Director, Melissa Crow contributed a post to this symposium debunking the argument that the Obama administration is overstepping its authority by making DAPA and DACA-plus beneficiaries lawfully present and eligible for employment authorization.

She writes: 

“While the twenty-six states challenging the initiatives concede that the secretary of Homeland Security has unreviewable discretion to set immigration enforcement priorities (which the Supreme Court affirmed most recently in Arizona v. United States), they contend that the Obama administration has attempted to “effectively rewrite the laws” through this particular use of its discretion. In particular, they argue that the Obama administration has exceeded the bounds of its authority on the basis that beneficiaries of DAPA and expanded DACA would be lawfully present and eligible for employment authorization while these initiatives are in effect. But the reality is that neither DAPA nor expanded DACA creates or grants legal status, and prospective beneficiaries’ eligibility for employment authorization would derive from longstanding federal law. Simply put: nothing about DAPA or expanded DACA is new or involves unlawful legislating by the executive branch.” 

To read the entire piece, visit,