The DOJ (Department of Justice) has informed SCOTUS that they lack the authority to give illegal immigrants enrolled in DACA program work permits. The Supreme Court will hear oral arguments on Tuesday on whether the DACA program is constitutional or not. The decision will probably not be revealed until June of 2020. It’s sister program, DAPA ( Deferred Action for Parental Accountability) has already ended. That case went to the Supreme Court just after Antonin Scalia died and the vote was 4-4, so that allows the decision of the 5th Circuit Court of Appeals to stand. The 5th Circuit ruled that DAPA was unconstitutional.
The court ruled that although Barack Obama had the power to defer deportation, he did not have the power to bestow benefits not approved by Congress. That would mean that DACA is also unconstitutional and for the same reason. The ruling affects the 8900,000 now currently enrolled in DACA, 80% of whom are from Mexico. Mexico has already issued a “friend of the court” brief, encouraging the court to find in favor of the program. There are actually several work permit ograms in effect that allows illegal and legal foreigners to receive work permits. This action would affect two of those programs and have the potential to add over 1 million jobs for Americans.
The DOJ’s brief narrows the department’s prior 2018 claim that Section 1324a of federal law allows the administration to approve an unlimited number of work permits for foreigners:
Section 1324a may have ratified extending work authorization to aliens who received deferred action on an individualized basis or pursuant to interstitial class-based deferred-action policies.
But it cannot reasonably be interpreted to have “br[ought] about [the] enormous and transformative expansion” in the Secretary’s authority that would be required to support conferring work authorization in conjunction with a deferred-action policy like DACA.
The previous directive and interpretation says:
pre-existing DHS regulations [to] allow all deferred-action recipients to apply for employment authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens).
The decision is now left up to the Supreme Court.