"Lawfully" does not mean "legally."
Welcome to what Solicitor General Donald Verrilli told the Supreme Court on Monday is the "immigration world." Or, more accurately, welcome to the new world President Barack Obama — through his solicitor — is asking the Supreme Court to join him in declaring.
It is a world that contradicts the law of noncontradiction. It is a place where something can be and not be at the same time. It is a place of illogic — and lawlessness.
The Supreme Court heard oral arguments Monday in U.S. v. Texas. This case pits 26 states against the Obama administration on the question of whether the Executive Branch — n.b. the president through a bureaucratic subordinate — can unilaterally declare that more than four million foreign nationals who are illegally in the United States may stay here, work here and acquire eligibility for Social Security, disability and Medicare.
In a final brief presented to the court this month, Verrilli explained the administration's "guidance" on this policy, which it calls Deferred Action for Parents of Americans and Lawful Permanent Residents.
The states suing the administration, Verrilli told the court, "are fundamentally wrong to claim the Guidance confers on aliens whose presence Congress has deemed unlawful the right to remain lawfully in the United States."
"Aliens covered by the Guidance, like all aliens afforded deferred action, are violating the law by remaining in the United States, are subject to removal proceedings at the government's discretion, and gain no defense to removal," Verrilli said.
The solicitor general then argued that the administration was not granting foreign nationals illegally in the United States "lawful status." It was instead granting them "lawful presence."
"Aliens with lawful status under the [Immigration and Nationality Act] are here lawfully; their presence therefore is not a basis for removal," said Obama's solicitor in his brief. "By contrast, mere 'lawful presence' occurs when the Executive 'openly tolerate[s] an undocumented alien's continued presence in the United States for a fixed period (subject to revocation at the agency's discretion),' notwithstanding that the alien lacks lawful status and is present in violation of the law."
So in the words of Obama's own solicitor: An "undocumented alien" whom the administration grants "lawful presence" remains "present in violation of the law."
In Monday's oral arguments, Chief Justice John Roberts and Justice Samuel Alito challenged the solicitor's language.
"On Page 16, you quote the Guidance that says, 'The individuals covered are lawfully present in the United States,'" Roberts told Verrilli, according to the court's official transcript. "And less than a page later, you say, 'Aliens with deferred action are present in violation of the law.'
'Now that must have been a hard sentence to write," said Roberts. "I mean ... they're lawfully present, and yet, they're present in violation of the law."
Verrilli responded: "I actually had no trouble writing it, Mr. Chief Justice."
At this, according to the transcript, laughter arose in the Supreme Court chamber.
This is when Verrilli explained that these words have a different meaning in the "immigration world."
"The reason I had no problem writing it is because that phrase, 'lawful presence,' has caused a terrible amount of confusion in this case; I realize it," said Verrilli. "But the reality is ... it means something different to people in the immigration world. What it means in the immigration world is not that you have a legal right to be in the United States, that your status has changed in any way. That you have any defense to removal. It doesn't mean any of those things, and it never has ... and so at that fundamental level, we are not trying to change anybody's legal status on the immigration—"
Roberts interrupted: "Lawfully present does not mean you're legally present in the United States."
"Right," said Verrilli. "Tolerated—"
Roberts interrupted again: "I'm sorry ... just so I get that right ... Lawfully present does not mean you're legally present."
"Correct," said the solicitor general.
Justice Alito then asked if it was true that those granted this unique status "may lawfully work in the United States."
"That's right," said the solicitor.
"And how is it possible," asked Alito, "to lawfully work in the United States without lawfully being in the United States?"
Millions are doing it, the solicitor general assured the justice.
"There are millions of people, millions of people other than DAPA recipients about who this is true right now," said Verrilli. "And this gets to the point of why their [the complaining states] reading of Section 1324 is completely wrong."
But Alito focused on the plain English.
"I'm just talking about the English language," Alito said. "I just don't understand it. ... [H]ow can it be lawful to work here but not lawful to be here?"
That is a good question. But the only way the court itself can answer it correctly is if five justices agree on the truth.