2017] COOPERATIVE ENFORCEMENT IN IMMIGRATION LAW 3
immigration cases in decades.2 Texas and 25 other states had challenged the
Obama Administration’s blanket exercise of prosecutorial discretion granting
a temporary reprieve from removal to millions of unauthorized immigrants.
Although the tie vote set no precedent, it kept in place the lower court’s
nationwide preliminary injunction and, together with the election of Donald
J. Trump to be the next president, sounded the death knell for Obama’s
initiative.3 The case exemplifies the problems with the longstanding
dichotomy in immigration enforcement, in which immigration officials
believe they have only two choices: deport unauthorized immigrants or
exercise prosecutorial discretion, allowing certain categories of unauthorized
immigrants to remain in the United States without legal status.
This Article suggests a third way: The immigration bureaucracy could
adopt a cooperative enforcement model similar to that used by other federal
agencies, under which government officials would proactively assist a subset
of unauthorized immigrants come into compliance with the law.
Administrative law scholars have long promoted cooperative enforcement in
other fields, arguing that administrative agencies should replace the rigid,
adversarial, command-and-control regime that dominated the regulatory
environment in the 1970s and 1980s with a collaborative approach to
rulemaking and enforcement.4 Over the past 20 years, agencies such as the
2. See, e.g., Linda Greenhouse, The Supreme Court vs. the President, N.Y. TIMES (Feb. 4, 2016),
https://www.nytimes.com/2016/02/04/opinion/the-supreme-court-vs-the-president.html (describ ing
the case as presenting a “blockbuster constitutional question”); Dara Lind, United States v. Texas, the
Biggest Immigration Case in a Century, Explained, VOX (Apr. 15, 2016, 10:50 AM), http://www.vox.
com/2016/4/15/11424614/supreme-court-immigration-dapa-daca; Adam Liptak & Michael D.
Shear, Supreme Court Tie Blocks Obama Immigration Plan, N.Y. TIMES (June 23, 2016), https://www.
nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html (descr ibing the C ourt’s
decision in United States v. Texas as “perhaps [the Supreme Court’s] most important statement this
3. See Liptak & Shear, supra note 2 (stating that the Court’s decision “effectively end[ed]”
President Obama’s deferred action initiatives).
4. See, e.g., IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE
DEREGULATION DEBATE 5 (1992) (promoting responsive regulation in which agencies emphasize
“flexibility,” “participat[ion],” and “negotiation” with regulated entities rather than the top-down,
“punitive” and “repressive” regulatory style of the past); JOHN BRAITHWAITE, RESTORATIVE JUSTICE
AND RESPONSIVE REGULATION 29 (2002) (explaining that responsive regulation should be us ed
“in deciding whether a more or less interventionist response is needed”); Jo dy Freeman,
Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 4–7 (1997) (describing new
methods of regulation in which agencies shift away from adversarial enforcement and toward
cooperation with regulated entities); Robert L. Glicksman & Dietrich H. Earnhart, Depiction of the
Regulator-Regulated Entity Relationship in the Chemical Industry: Deterrence-Based vs. Cooperative
Enforcement, 31 WM. & MARY ENVTL. L. & POL’Y REV. 603, 611–44 (2007) (discussing the benefits
of cooperative enforcement over punitive, command-and-contro l style regulation); Kristin E.
Hickman & Claire A. Hill, Concepts, Categories, and Compliance in the Regulatory State, 94 MINN. L.
REV. 1151, 1160 (2010) (explaining that one theory of enforcement assumes that “regulated
parties want to comply with the law and will respond more positively to persuasion, education,
and assistance than to penalties”); Bradley C. Karkkainen, Environmental Lawyering in the Age of
Collaboration, 2002 WIS. L. REV. 555, 557 (describing criticism of the “command-and-control”