November 16, 2015

Employment Authorization, the DAPA Memo and the Fifth Circuit’s Opinion

Cross-posted from Immigration Prof Blog.

On November 9, the Fifth Circuit denied the federal government’s petition to stay the federal district court’s injunction in Texas v. United States. The ruling upheld the injunction, preventing the implementation of the administration’s extended DACA and DAPA programs, otherwise known as the DAPA memo. The court decided that the Obama administration’s proposed implementation of the DAPA memo was a substantive rule implemented in violation of the Administrative Procedure Act’s requirements for notice and comment rulemaking. Substantively, the court held that the executive branch overreached its authority to issue employment authorization to the millions of undocumented individuals that would qualify under the administration’s deferred action program. In this post I analyze the executive branch’s authority to issue employment authorization documents.

The DAPA memo stated that eligible undocumented individuals can apply for deferred action, and that “each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the period of deferred action.” DAPA Memo at 4. The Court of Appeals focused on the reference to employment authorization, and its ability to transform the rights of an undocumented person. The court noted that because the government was outside its authority to grant deferred action, it was also outside its authority to grant employment authorization.

The Court of Appeals is wrong. The employer sanctions provisions of Immigration Reform and Control Act (IRCA) expressly grant wide latitude to the agency, and Congress specifically intended to provide the agency with this broad authority. And so, the Court of Appeals got it backwards when it concluded that

“[I]f DAPA’s deferred-action program must be subjected to notice-and- comment, then work authorizations may not be validly issued pursuant to that subsection until that process has been completed and aliens have been ‘granted deferred action.’”

As the government argued and the dissent concluded, the agency has the authority to grant employment authorization regardless of DAPA; it is its authority to regulate worksite immigration enforcement that allows it to also grant deferred action on a category of individuals for its convenience.

Congress granted the agency this broad authority precisely to enable the agency create what is now the vast and largely-expanded infrastructure for worksite enforcement. If Congress had not vested the agency with flexibility in creating the categories for proper employment authorization, the carefully-created compromises in the employer sanctions provisions would not have been sustainable.

When Congress first set up employer sanctions and worksite immigration enforcement scheme in IRCA, it made the explicit decision to give the executive branch the authority and discretion to provide employment authorization to certain classes of noncitizens. INA § 274A(h)(3) defines an “unauthorized alien” for employment purposes:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

The clear meaning of this language is to give the Attorney General discretion to authorize employment under the Act. IRCA provides specific guidance to the agency about its power to determine who is eligible for work, and yet the employer sanctions provision is silent on the question of how unlawful presence should be considered. The Act further provided, “The Attorney General shall, not later than the first day of the seventh month beginning after the date of enactment of this Act, first issue, on an interim or other basis, such regulations as may be necessary in order to implement this section [which included INA § 274A].”

The Attorney General acted pursuant to this power, issuing regulations governing the types of individuals who were employment authorized by virtue of their immigration status as well as those eligible to apply for employment authorization subject to agency approval. Among those authorized to apply for employment authorization subject to agency discretion were individuals with deferred action. See 8 CFR 274a.12(c)(14).

It is important to remember that employment authorization provisions were developed as a comprehensive worksite enforcement scheme aimed at punishing EMPLOYERS, not employees, for hiring unauthorized workers. Employment authorization was seen by Congress as a way to make it easier for employers to identify authorized employees and to create a safe harbor for employers who were wary of the effects of worksite enforcement efforts on their own liability. The impetus for employer sanctions was less about protecting American workers (as the Court of Appeals suggests) than it was about making employers accountable for hiring foreign-born workers. The employer sanctions were not targeting unlawful presence. Rather they were targeting employers who hired workers without employment authorization. The distinction is important because employers fought very hard to ensure that they were not converted into private immigration enforcement officers. They, as well as Congress, wanted to leave it up to the agency to make decisions about employment authorization, especially in those cases in which immigration status itself did not automatically confer employment authorization. The agency’s regulations, implemented in 8 CFR 274a.12(c), list at least 25 such situations. Employment authorization, therefore, has become a critical element in the enforcement scheme designed to protect employers by providing a safe harbor. That employment authorization, and the agency’s ability to grant it, are questioned today, almost 30 years after implementation, should cause employers great concern.

There are important effects beyond undermining the employer sanctions provisions. From a civil rights perspective, the employer sanctions provisions would strip all meaning from prohibitions on alienage discrimination that also were a part of the grand bargain between Congress and employers in the implementation of worksite immigration enforcement. Under the alienage discrimination provision, an employer cannot discriminate against an employment-authorized worker on the basis of alienage. The provision was put in place alongside the safe harbors in the employer sanctions provisions to ensure that employers did not discriminate in their hiring practices and claim that they did not have the capacity to distinguish between employment-authorized and unauthorized workers. The Court’s ruling now puts employers in a bind if they cannot rely on the agency’s authority to grant employment authorization. In other words, when Congress implemented IRCA, it understood that there would be a universe of unlawfully present individuals seeking work. It defined “unauthorized alien” specifically in the statute to give the agency the flexibility to monitor, regulate and control that universe. Employment authorization does not make an individual lawfully present, nor does it provide any of the benefits that the Court of Appeals imagines. It does, just as Congress intended, provide the immigration agency the flexibility and authority to authorize employment as it sees fit, so that the ultimate goal of employer sanctions – to make the employer accountable for unauthorized work – can be achieved.

The Court of Appeals displayed a fundamental lack of understanding of IRCA and the relationship between employment authorization and DAPA. If it had understood the genesis and history of employment authorization and its relationship to employer sanctions, it would have understood that deferred action is a mechanism to provide the agency with the type of flexibility necessary to enforce employer sanctions. Bringing people out of the shadows, as President Obama suggested, is really about maintaining the employer sanctions system that Congress so carefully crafted almost 30 years ago.