the dapa case. which was held to be unconstitutional. >> the fifth circuit -- >> and this is -- i don't think it's a perfect analogy, but it's an analogy. and why shouldn't the government -- why shouldn't the executive branch be able to make its own determination as to what it considers proper exercise of the constitution? i mean, every branch of government can determine for itself whether it wants to take an action that it considers to be unconstitutional. >> well, two points, your honor. first, the fifth circuit never reached the constitutional claims there. so ag sessions' claim that they did us with wrong. and second, of course the defendants remain free to set their own enforcements. and if that's all they have done here, we would have an unreviewable act of discretion, but they did not simply set enforcement priorities. they set forth a determination about the scope of their authority. that would be binding on the agency. >> they said it was inconsistent with the ina, i think. >> they said it

>> dapa as opposed to daca. that program would have offered at least a temporary depre from deportation. that was blocked by the courts. right now there's nothing for parents. if you're an unauthorized immigrant parent you don't have another way to get a green card and it's very difficult. if you cross the border illegally, you're blocked from getting a green card. they're working with and the sad of working conditions as someone who has legal status. host: new mexico, good morning. caller: my comments on daca is like >>ve my comment on the dak is, venezuela going on right now, they're fighting for their own country, i don't understand why mexico -- don't fight for their own country? >> i think that they have a responsibility to go over there and fight for their own rights and put down the people that are over there and strain out their countries, they're coming over here and trying to fight for their rights here when they should go back over there and fight for their own country. to be honest with you, they're

but did the dapa program create an ability to work, to get working papers? >> yes. that is correct. that is all by administrative regulation. if you received deferred action, whatever you get work authorization set by regulation. >> is that something that is bestowed on anybody whose the subject of deferred action? >> yes. and that's a longstanding dhs policy. >> thank you. >> so in texas, the reasoning also was erroneous because there is the fifth circuit conflated lawful presence and lawful status. so daca by -- these deferred action programs by administrative regulation also confer wrongful presence. however, they never confer lawful status so there's no conference with the ina which is solely devoted to looking at lawful status. so -- and -- >> what is the status? if it is not a status then what is a status? >> so a status is specifically -- specifically enumerated immigrant or not immigrant visa in the ina. >> but i think when it's said that it creates a new status you're saying it creates a status outside the ina and therefore an illegal one. >> the other issue -- >> you have

there was a much larger program called dapa and that's when things went off the rail.en the lawsuits started that eventually blocked the program. host: who is eligible for that? that was a much broader population. we estimate this could've been as many as 3 million and it could've been over 4 million that was for parents that had a u.s. born child. nearly 3 million unauthorized immigrants that had a u.s. born child. they also had to be in the country for a certain period of time. host: bringing it back to the daca program, how many people at this point have taken advantage of it versus how many people are eligible in your estimate. guest: 900,000 people have applied in the latest estimates are 670,000 people are enrolled in the program now. our estimate is somewhere 1.3 million to maybe 1.5 million people are eligible. right0 out of one points -- out of 1.3 million is fairly high. loved towould have some of the daca recipients otherwise the phone lines are split up by region. we are having this discussion and a 9:00, the house will be in session. remind viewers with th