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It will be legal if Apple is given a tax holiday.

Realize that Apple could theoretically spin these foreign cash-holding subsidiaries off into independent entities that will never pay any taxes to the United States. Apple has no moral or legal obligation to bring the money home other than the duty to shareholders to realize returns - and that same duty is the one that has them avoiding paying more tax than necessary.

Also, consider that in the case of a tax holiday, Apple will pay an optimum amount of tax (i.e. the maximum amount Congress believes it can charge while still bringing foreign cash home), and then repurchase programs will increase share prices, which will lead to sales of stock which will incur capital gains taxes from domestic shareholders. So, the United States treasury will be receiving more than just the repatriation tax. If Apple repatriated cash at a higher tax rate, they would repurchase fewer shares, leading to a lower price and fewer domestic sales of stock.