Ignoring the Elephant in the Room: An Initial Reaction to Judge Hanen's Decision Enjoining DAPA, Expanded DACA

"Judge Hanen appears to have overlooked a very important part of the legal landscape, what one might term the elephant in the room.  The statutory authority for employment authorization under the INA is contained in section 274A of the INA, otherwise known as 8 U.S.C. §1324a.  That section lays out a variety of prohibitions on hiring and employing an “unauthorized alien”, and concludes by defining the term as follows:

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 chapter or by the Attorney General. - 8 U.S.C. §1324a(h)(3)

That is, the Attorney General – whose functions have now been in relevant part taken over by the Secretary of Homeland Security – is statutorily empowered to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  There are a few restrictions on this authority noted elsewhere in the INA: for example, 8 U.S.C. §1226(a)(3) states that an alien who is arrested and placed in removal proceedings may not be provided with work authorization when released from custody unless he or she is otherwise eligible for such work authorization “without regard to removal proceedings”.  But overall, the authority provided by 8 U.S.C. §1324a(h)(3) is quite broad." - David A. Isaacson, Feb. 18, 2015.