The Executive Branch Has Authority To Give Work Authorization To Illegal/Undocumented Immigrants

Yesterday at the Western Conservative Summit, fellow Cleveland sports fan and legal scholar Hugh Hewitt contended that Obama (through the executive branch) does not have authority to grant illegal/undocumented immigrants (hereinafter "unauthorized" work authorization without congressional approval.  Hugh Hewitt is mistaken. 

United States Code Section 1324(a) (citation 8 U.S.C. § 1324a)  is the statute that makes the employment of unauthorized aliens illegal.  Under Section 1324a(a)(1): 

It is unlawful for a person or other entity—

(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment

(emphasis added).  Notice the bolded section?  That is crucial as it makes clear that only the hiring of aliens that 8 U.S.C. § 1324a(h)(3) covers is illegal.  Thus, it is crucial to carefully look at what Section 1324a(h)(3) states.  I have copied its language below which makes clear Hugh Hewitt's mistake:

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.

(emphasis added). By this language, it is clear that the law allows the executive branch to authorize illegal immigrants to be hired.  Relevant to President Obama's June 15 policy memo allowing certain DREAMers  to apply for Deferred Action and receive work authorization, the executive branch long ago set out a regulation (8 C.F.R. § 274a.12, hereinafter the "Regulation") applying how it would use this authority that Section 1324a gives it.  Section (c) of the Regulation states as follows:

An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. . . .  

(14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;

(emphasis added)

This makes clear that by a regulation existing long before the June 15 policy memo, aliens granted deferred action were allowed to apply for employment authorization which the executive branch would consider giving them.  And, to repeat, the authority for such regulations clearly derives from Section 1324a, a statute that a prior session of Congress passed and that a prior President signed into law.  Accordingly, Hugh Hewitt's argument that President Obama does not have authority to grant the DREAMers work authorization is mistaken. 

PROVISOS:

(1) This is not legal advice.  I am not your attorney and anything said here may be mistaken.  So do not rely on it without first consulting an attorney.

(2) I am not an expert on immigration law - this is just my plain reading of the statute and regulation that appear on point. 

About the author (updated in July 2012): Elliot Fladen is an attorney practicing law in Colorado Springs, Colorado.  Nothing in this blog is meant to constitute legal advice unless explicitly stated to the contrary.