Notice & Comment

U.S. v. Texas – A Correction that Strengthens the Argument, by Michael Kagan

Earlier this week, in my commentary on Texas’ brief in the DAPA case, I wrote that “In order to get a Social Security number, non-citizens must be ‘lawfully present in the United States as determined by the [Secretary].’” That’s actually not quite correct.

A non-citizen must be deemed “lawfully present” to receive Social Security benefits. But to receive just a Social Security account number, she must simply be authorized to work – which makes sense, since payroll systems in this country depend heavily on having a Social Security number. (My thanks to Prof. Marty Lederman for drawing my attention to this.)

I highlight this error in a separate post because it significantly strengthens the case that Texas’ arguments against “lawful presence” in DAPA, even if valid, should not justify blocking the entire program.

The key provision is contained in 42 U.S.C. § 405(c)(2)(B)(i)(I), which is misleadingly quoted in Texas’ brief (though that does not excuse my error). It states that a Social Security account number may be provided

to aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States and to other aliens at such time as their status is so changed as to make it lawful for them to engage in such employment.

Texas quoted only the provision about a person’s “status” changing, since Texas wants to portray DAPA and granting some form of immigration status. But the full text establishes a logical and direct linkage between employment authorization and getting a Social Security number. If the Administration is right that DHS can give DAPA beneficiaries work authorization, then they should also be able to get Social Security numbers.

The import of this is that it further narrows that practical relevance of the objection to considering DAPA beneficiaries to be lawfully present. That is the core of Texas’ claims and was the foundation for the Fifth Circuit’s injunction. But lawful presence is a peripheral benefit for deferred action beneficiaries. A court could issue an injunction against lawful presence only – which would seem to address Texas’ stated concerns – and the program could survive. It is debatable whether Texas is right about lawful presence anyway, but DAPA’s fate need not turn on that question. This offers an appealing back up argument for the Administration.

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