Would a court ruling striking down the federal DACA or DAPA programs affect a Tennessee bill that would give in-state tuition to some unlawful immigrant students?

Plain-English summary

H.B. 675/S.B. 612 (109th General Assembly, 2015) would have let certain unlawful immigrants qualify for in-state tuition at Tennessee public universities. To qualify, the student needed to have attended Tennessee high school for three years, obtained a Tennessee diploma or equivalent, resided in Tennessee for at least a year, and (the key piece) "filed an application to legalize the individual's immigration status, or [agreed to] file an application as soon as the individual is eligible to do so."

Representative Roger Kane asked whether a court ruling invalidating the federal DACA (2012) or DAPA (2014) programs would have any effect on the bill. At the time, Texas v. United States was pending in the Fifth Circuit, with 26 states (Tennessee included) challenging DAPA and expanded DACA.

The AG concluded that DACA/DAPA invalidation would have no direct effect on the bill, and the answer turned on a precise distinction the DHS Secretary had himself acknowledged: deferred action under DACA/DAPA confers "lawful presence" for a specified period, but does not confer "legal status" or change the person's immigration status. The Fifth Circuit's opinion in Texas v. United States quoted this distinction.

The proposed Tennessee bill required the student to attest to having applied to "legalize the individual's immigration status." Because DACA/DAPA do not legalize status (they only authorize presence), filing a DACA or DAPA application would not satisfy the bill's affidavit requirement. So the population the bill aimed at had to be applying for some other form of status legalization. Whether DACA/DAPA continued, was struck down, or expanded did not change that.

The opinion is narrow. It does not address whether the bill would survive other constitutional challenges, whether "applied to legalize" was workable in practice (since most unlawful immigrants have no application path to permanent status), or whether the bill would actually pass.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The federal DACA program has gone through extensive litigation since 2015; DAPA was never implemented. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the difference between "lawful presence" and "legal status"?
A: As the DHS Secretary stated and the Fifth Circuit quoted, deferred action under DACA/DAPA "does not confer any form of legal status in this country, much less citizenship." It only means that, for the specified deferred-action period, the individual is "permitted to be lawfully present." Legal status refers to formal immigration categories (lawful permanent resident, asylee, visa holder, etc.) that confer durable rights. Presence is temporary tolerance of physical presence without formal status.

Q: Did the bill ever pass?
A: The opinion does not say. The opinion addresses the bill as introduced in 2015; the legislative outcome is a matter of separate legislative record.

Q: Could a student who had applied for DACA satisfy the bill's affidavit?
A: Per the AG, no. The bill required attestation to applying to legalize immigration status, not to obtaining lawful presence. A DACA applicant would have to point to some separate application for status legalization, such as a family-based adjustment, asylum, or U/T visa, to qualify.

Q: Why did legislators ask this question?
A: Likely because if DACA/DAPA invalidation had been read to expand or shrink the pool of bill-eligible students, the legislative analysis (including fiscal impact and constituent impact) would change. The AG's narrow textual answer made clear the federal litigation's outcome would not move the bill's qualifying population because the bill's text already drew the line at "status" rather than "presence."

Background and statutory framework

The federal DACA program (2012, with 2014 expansion) and DAPA program (2014, never implemented) were executive-branch initiatives offering eligible unlawful immigrants deferred action and work authorization. The Fifth Circuit in Texas v. United States enjoined the expanded DACA and DAPA, holding the rollout had likely violated the Administrative Procedure Act. The U.S. Supreme Court eventually affirmed that ruling by an evenly divided vote in 2016 (United States v. Texas, 579 U.S. 547 (2016)), after this opinion.

The textual hook for the AG's analysis was the bill's verb choice: "legalize [the] immigration status." That is not what DACA/DAPA do. DACA and DAPA defer enforcement; they do not adjust status. The drafters of the Tennessee bill (perhaps intentionally) tied eligibility to a category of applications that few unlawful immigrants can in fact file, since unlawful entrants generally have no path to adjust status without leaving and re-entering legally.

Citations and references

Cases:

• Texas v. United States, No. 15-40238, 2015 WL 6873190 (5th Cir. 2015) (Fifth Circuit enjoining DAPA and expanded DACA)

Bills:

• H.B. 675, 108th Gen. Assem. (2015)
• S.B. 612, 108th Gen. Assem. (2015)

Federal programs:

• Deferred Action for Childhood Arrivals (DACA), DHS 2012, expanded 2014 (enjoined)
• Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), DHS 2014 (enjoined, never implemented)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-81.pdf

Original opinion text

Opinion No. 15-81 (December 23, 2015)

Effect of Invalidation of Federal DACA or DAPA Programs on H.B. 675/S.B. 612

Question

Would a court ruling invalidating the federal Deferred Action for Childhood Arrivals ("DACA") program or Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program have any effect on H.B. 675/S.B. 612, which would establish an exemption from paying out-of-state tuition for certain unlawful immigrants who attest that they have applied to legalize their immigration status or intend to do so once they are eligible?

Opinion

No. The federal DACA and DAPA programs provide a means for certain unlawful immigrants to obtain lawful presence in the United States, but those programs do not confer lawful immigration status. A court ruling invalidating either DACA or DAPA would not directly affect H.B. 675/S.B. 612 because that legislation requires unlawful immigrants to attest that they have applied for lawful status, not merely for lawful presence.

ANALYSIS

During the 2015 session of the Tennessee General Assembly, legislation was introduced that would exempt certain students from payment of out-of-state tuition at state institutions of higher education. See H.B. 675, 108th Gen. Assem. (2015); S.B. 612, 108th Gen. Assem. (2015). As relevant here, an unlawful immigrant who attends high school in Tennessee for three years immediately prior to graduation; obtains a high school diploma or equivalent degree; and resides in Tennessee for at least one year immediately prior to enrolling in a state institution of higher education would be eligible for the exemption provided he or she "files an affidavit with the state institution of higher education stating that the individual has filed an application to legalize the individual's immigration status, or shall file an application as soon as the individual is eligible to do so."

In 2012, the U.S. Department of Homeland Security ("DHS") implemented the DACA program to allow certain unlawful immigrants who arrived in the United States as children to request consideration for deferred action with regard to deportation. See Texas v. United States, No. 15-40238, 2015 WL 6873190, at 1 (5th Cir. 2015). In 2014, DHS expanded the DACA program and also created a new program called DAPA to allow certain unlawful immigrants who are parents of U.S. citizens or lawful permanent residents to request consideration for deferred action. See id.* If deferred action is granted, the individual is permitted to be lawfully present in the United States for a prescribed time period.

The Secretary of DHS has stated that, "although deferred action does not confer any form of legal status in this country, much less citizenship, it does mean that, for a specified period of time, an individual is permitted to be lawfully present in the United States." Id. (alterations and internal quotation marks omitted) (emphasis in original). In other words, an individual who is granted deferred action under DACA or DAPA obtains "lawful presence," but that individual's immigration status is not legalized.

In 2014, twenty-six states, including Tennessee, filed a lawsuit to enjoin the federal government from expanding DACA or implementing DAPA. See id. at *1-2. That litigation remains pending.

You have asked whether a court ruling invalidating either DACA or DAPA would have any effect on H.B. 675/S.B. 612. That legislation would require an unlawful immigrant who wishes to obtain an exemption from out-of-state tuition to attest that he or she has applied to "legalize [his or her] immigration status" or will do so once eligible. An individual who receives deferred action under either DACA or DAPA obtains only lawful presence in the United States, not lawful immigration status. Because neither DACA nor DAPA confers lawful immigration status, an unlawful immigrant could not satisfy the affidavit requirement of H.B. 675/S.B. 612 by stating that he or she has applied for DACA or DAPA or intends to do so once eligible.

In short, the DACA and DAPA programs are not relevant to the requirements of H.B. 675/S.B. 612 because an individual who requests consideration for those programs has not applied to "legalize the individual's immigration status" as required by the bill. Accordingly, a court ruling invalidating the DACA program or the DAPA program would have no direct effect on H.B. 675/S.B. 612.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SARAH K. CAMPBELL
Special Assistant to the Solicitor General and the Attorney General

Requested by:
The Honorable Roger Kane
State Representative
202A War Memorial Building
Nashville, Tennessee 37243-0106