AuthorO'Connor, Colleen E.


The Obama administration announced a major immigration reform initiative in 2014, stating that it would refrain from taking deportation action against undocumented immigrants who were parents of U.S. citizens or lawful permanent residents ("LPRs"). The Obama administration justified its immigration initiative upon its authority to exercise executive nonenforcement discretion. (1) In immigration and other contexts, the Take Care Clause, stating that the President "shall take Care that the Laws be faithfully executed," (2) has been treated as a source of the President's power to defer the enforcement of the law. (3)

Exercising broad discretion not to enforce the law is a tempting solution for the President to exert significant authority without turning to Congress. In effect, the President can transform the reach of congressional laws to achieve substantive policy goals. (4) Pertaining to immigration, Congress enacted the Immigration and Nationality Act of 1952, stating that people who enter the country illegally will be subject to deportation. (5) Yet in the past several years, the Department of Homeland Security announced two programs--Deferred Action for Childhood Arrivals ("DACA") and Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA")--under the premise of prosecutorial discretion to justify not enforcing deportation statutes against certain undocumented immigrants. (6) DACA deferred deportation for individuals who came to the United States as children yet never obtained citizenship or lawful status. (7) DAPA proposed to defer deportation for parents of U.S. citizens or LPRs who had no bridge to a lawful status in the country. (8)

In anticipation of pushback, when the Department of Homeland Security announced DAPA, the U.S. Department of Justice's Office of Legal Counsel issued an Opinion on DAPA's legality ("OLC Opinion"). (9) The OLC Opinion established a multifactor framework for defining the scope of the Executive's enforcement discretion under the Take Care Clause to determine whether executive action effectively rewrote the laws or acted in conformity with congressional policy. (10) While the OLC Opinion in many regards is a poor attempt to provide guidance for the Executive acting under the Take Care Clause, it provides a baseline that the Office of Legal Counsel can build upon and use to assess other actions of enforcement discretion beyond the context of immigration.

While DACA's fate is still indeterminate, (11) federal courts enjoined DAPA during the Obama administration. The courts viewed DAPA as a rewriting of the law, (12) and President Trump later rescinded the deferred action program. (13) When addressing DAPA's legality, the Supreme Court requested briefing on whether DAPA violated the Take Care Clause, (14) yet avoided defining the scope of the Take Care Clause in this instance of executive inaction. (15)

Although DAPA never took effect, both immigration reform programs demonstrate that President Obama was able to reshape federal policy and narrow the reach of congressional legislation through his nonenforcement discretion. By one account, out of the total 11.3 million undocumented immigrants in the country, 1.2 million undocumented immigrants are eligible for DACA and 4.3 million would have been eligible for DAPA. (16) An exercise of executive inaction would have amounted to temporary deportation relief for almost half of the country's undocumented immigrants. As presidents increasingly implement policy goals through strategic inaction, the question arises as to when nonenforcement discretion runs up against the President's mandate to "take Care that the Laws be faithfully executed." (17) This question becomes increasingly important if the executive branch continues to make wide-ranging policy decisions under the guise of discretion. (18)

Part I of this Note will discuss the Department of Homeland Security's authority to regulate immigration and focuses on DACA and DAPA. Part II will address the U.S. Department of Justice's Office of Legal Counsel Opinion on DAPA's legality. Part III will turn to the lack of judicial constraints on or legislative responses to the executive branch's enforcement discretion. Part IV will propose that the executive branch should take a more active role in ensuring that the President remains faithful to the Take Care Clause when exercising prosecutorial discretion. Expounding upon the Office of Legal Counsel's multifactor framework is a solution for the executive branch to police itself not just in the context of immigration, but any time the executive branch broadly exercises its nonenforcement discretion.


    1. The DHS's Statutory Authority to Regulate Immigration

      To understand executive nonenforcement in the contexts of DACA and DAPA, it is necessary to briefly review immigration law. Congress enacted the Immigration and Nationality Act of 1952 ("INA") and provided what is now the Department of Homeland Security ("DHS") with the authority to remove undocumented immigrants. (19) The INA created a system of removal for deportable immigrants (20) and specified that certain classes of immigrants are ineligible to receive visas and to be admitted into the United States. (21) Congress delegated to the DHS a broad regulatory scheme pertaining to immigration. (22) The Act announced that deportable immigrants generally included immigrants who were "inadmissible at the time of entry, ha[d] been convicted of certain crimes, or [met] other criteria set by federal law." (23) The other criteria for deportation included undocumented immigrants who failed to register or falsified documents; engaged in criminal activity endangering the public safety or national security; or voted unlawfully in violation of federal, state, or local law. (24) Congress tasked the DHS with initiating removal proceedings and executing final orders of removal. (25)

    2. The DHS's Removal Discretion

      Despite the broad congressional mandate to remove undocumented immigrants, full enforcement of the INA has proven to be implausible. There are approximately 11.3 million undocumented immigrants in the United States. (26) One report estimates that it would cost an average of $10,070 per person, or $114 billion total, to remove the entire population of undocumented immigrants. (27) The DHS only has the resources, however, to remove less than 400,000 undocumented immigrants per year. (28) Given the breadth of the INA's statutory prohibitions and the limitations of enforcement resources, agency discretion toward how resources are allocated is inevitable.

      The immigration structure critically depends on executive discretion. (29) Congress expressly provided the DHS with discretion to "[e]stablish[ ] national immigration enforcement policies and priorities" (30) since the DHS cannot act "against each technical violation of the statute it is charged with enforcing." (31) The discretion to determine whether a violation of the law warrants action is rooted in the President's Article II responsibility to "take Care that the Laws be faithfully executed." (32) Given that many INA violations go unpunished, it is critical to rely upon executive discretion to delay or suspend removal.

      The method of discretionary relief relevant to immigration law is known as "deferred action." The term deferred action refers to the temporary delay in the removal of undocumented immigrants. (33) Deferred action has been used in a wide array of immigration contexts. (34) Discretionary relief from immigration has included victims of domestic violence under the Violence Against Women Act (VAWA), (35) victims of human trafficking and certain other crimes, (36) foreign students impacted by Hurricane Katrina, (37) widows or widowers of U.S. citizens, (38) and direct relatives of U.S. soldiers. (39)

    3. Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents

      The Obama administration premised two major immigration programs on deferred action. The first directive, DACA, offered temporary deportation relief for immigrants who entered the United States as children and met certain other specifications. The second directive, DAPA, extended deportation relief to parents of U.S. citizens and LPRs.

      Turning to Obama's first major immigration program, DACA, the DHS announced on June 15, 2012, that it would defer the deportation of immigrants who came to the United States as children. The DHS set out specific criteria to be eligible for DACA:

      [An individual is eligible if he/she] came to the United States under the age of sixteen; has continuously resided in the United States for at least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum; is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and is not above the age of thirty. (40) While DACA conferred "no substantive right, immigration status or pathway to citizenship," (41) individuals who met the criteria were eligible to receive renewable deferred action for two years. (42) After the two-year period, DACA recipients could request a renewal if they continuously lived in the United States and did not have a serious criminal conviction. Under deferred action, the DHS promised not to initiate removal proceedings and provided eligible candidates with temporary employment authorization in the United States. (43) This policy allowed the DHS to avoid expending limited resources on low-priority undocumented immigrants and to shift the focus toward...

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