Executive Discretion and First Amendment Constraints on the Deportation State

• Jurisdiction: United States,Federal
• Citation: Vol. 56 No. 4
• Publication year: 2022

Executive Discretion and First Amendment Constraints on the Deportation State

Jennifer Lee Koh
Pepperdine Caruso School of Law, jennifer.koh@pepperdine.edu

Executive Discretion and First Amendment Constraints on the Deportation State

Cover Page Footnote

Associate Professor of Law and Co-Director, Nootbaar Institute on Law, Religion & Ethics, Pepperdine Caruso School of Law. I am grateful to Alina Das, David Han, Michael Kagan, Laila Hlass, Barry McDonald, Shoba Sivaprasad Wadhia, Mary Yanik, and Sejal Zota for conversations and comments related to this essay. I would also like to thank the editors of the Georgia Law Review for inviting me to participate in this symposium, Pepperdine Caruso Law Dean Paul Caron for generous research support, and Pepperdine Caruso School of Law student Jared Antman ('22) for excellent research assistance. The views expressed here, and any errors, are mine alone.

[Page 1473]

EXECUTIVE DISCRETION AND FIRST AMENDMENT CONSTRAINTS ON THE DEPORTATION STATE

Jennifer Lee Koh^*

Given the federal courts' reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts' ambivalence when it comes to enforcing immigrants' rights to be free from retaliation. To do so, this Essay explores the Supreme Court's influential 1999 decision in Reno v. American-Arab Anti-Discrimination Committee, which held that statutory restrictions on judicial review prevent noncitizens from bringing First Amendment-based selective deportation claims as a defense to deportation. In particular, it draws attention to the Court's implicit suggestion that foreclosing judicial review of such claims was necessary to preserve the legitimacy of positive exercises of prosecutorial discretion to the benefit of immigrants. The Essay then turns to the relationship between executive discretion in the immigration context and the possibility of robust, judicially enforceable First Amendment protections for immigrants, especially individuals facing immigration enforcement action. It highlights how a different dimension of executive discretion—the operation of low- and mid-level discretion in the deportation state—provides agency officials with extensive opportunities to

[Page 1474]

retaliate against noncitizens for their political speech and activity. The Essay concludes with the suggestion that judicially enforceable First Amendment constraints on this low- and mid-level discretion are both possible and necessary, while expressing concern over the Supreme Court's endorsement of broader restrictions on noncitizens' access to the federal courts.

[Page 1475]

Table of Contents

I. Introduction..................................................................1476

II. Reno v. AADC and the Relationship Between Executive Discretion and Robust First Amendment Protections for Noncitizens......................................1482

III. The Centrality of Executive Branch Discretion in Immigration Law........................................................1493

IV. Executive Discretion and Government Retaliation Against Immigration Speech and Activism.............1499

V. Conclusion: First Amendment Constraints on the Deportation State......................................................1506

[Page 1476]

I. Introduction

The courts have long been reluctant to commit to a clear position on the degree to which the First Amendment's free speech and association provisions extend to immigrants,¹ despite a troubled history between the aspirations of the constitutional protection and operation of the immigration laws.² Whether noncitizens receive protection from retaliation for engaging in First Amendment-protected activity, especially when that retaliation takes on the form of immigration enforcement activity, now appears to depend heavily upon the immigration policy agenda of the sitting President. During the Trump Administration, reports of enforcement activity against individuals who engaged in speech, activism, and advocacy around immigration became an alarming and frequent occurrence³ —much of which implicated political speech criticizing the government on public affairs, which the Supreme Court has characterized as enjoying the highest level of protection under the Constitution.⁴ President Biden took office with pledges to

[Page 1477]

significantly shift course with respect to immigration policy.⁵ It remains to be seen whether meaningful change in the immigration realm takes place amidst litigation challenges from states and weakening political will within the Administration.⁶ But the Biden Administration's approach to retaliation against immigrants has shown some modest signs of change. While the risk of retaliation against immigrants remains, particularly in immigration detention, reports of targeted retaliation against noncitizens have not matched the scale, intensity, or visibility of the prior administration. In a memorandum issued by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas on the use of prosecutorial discretion in immigration enforcement, DHS asserted that First Amendment-protected activity should "never be a factor in deciding to take enforcement action."⁷ Under the Biden Administration, prominent immigrant rights activists who were previously deported or

[Page 1478]

targeted for deportation have—with tremendous legal advocacy and grassroots organizing support—achieved some progress in their efforts to defend against deportation or return to the country after deportation.⁸

This symposium on the First Amendment and immigration, taking place in the second year of the Biden Administration, presents a timely opportunity to reflect upon the relationship between two themes: first, the discretion exercised by the Executive Branch in the immigration context, and second, the courts' ambivalence when it comes to enforcing First Amendment protections for immigrants experiencing government retaliation. To do so, this Essay explores the Supreme Court's analysis in an influential 1999 case, Reno v. American-Arab Anti-Discrimination Committee (AADC).⁹ In AADC, the Court held that statutory restrictions on judicial review prevented noncitizens from bringing First Amendment-based selective enforcement claims as a defense to deportation, with some possibility for review in cases involving outrageous retaliation.¹⁰ In particular, the Essay draws attention to the Court's implicit suggestion that foreclosing such claims was necessary to preserve the legitimacy of positive exercises of prosecutorial discretion to the benefit of immigrants.¹¹

After presenting the tensions raised in AADC, this Essay then reflects upon the relationship between the Executive Branch's

[Page 1479]

prerogative to exercise prosecutorial discretion and the possibility of robust, judicially enforceable First Amendment protections for immigrants facing immigration enforcement action.¹² As various immigration scholars have observed, the nature of the President and Executive Branch's discretion to implement the immigration laws has become a central feature of the immigration system.¹³ At the same time, the Executive's prerogative to implement the immigration laws in a manner that does not reflect the harshest possible version of the statutory language remains, in some quarters, highly contested by states that have challenged various forms of executive action in the federal courts.¹⁴ Furthermore, a

[Page 1480]

meaningful feature of contemporary executive discretion in the immigration context is that low- and mid-level immigration enforcement officers exercise high levels of discretionary decision-making in areas that have strong liberty interests, such as decisions related to physical detention and physical removal. But the exercise of low- and mid-level discretion has become a pressure point at which the First Amendment's free speech guarantee has become particularly vulnerable as far as retaliatory action by the immigration enforcement agencies is concerned.¹⁵

Accordingly, immigration enforcement retaliation can take on multiple forms and reflect numerous decisions, such as the decision to not renew a stay of removal, the decision to process a person for immediate deportation, the decision to detain, and the decision to transfer a person to another detention facility, to name a few. Each of these decisions implicates the discretion of immigration agents operating with minimal transparency and significant authority.¹⁶

One might question the urgency of examining free speech protections for immigrants under the Biden Administration, which has held itself out as a shift away from the excesses—even the terrors, for immigrant communities—of the Trump era.¹⁷ But reflecting upon government retaliation under the prior administration does indeed matter, especially due to the possibility that a future President could again adopt a singularly aggressive, anti-immigrant policy agenda. Moreover, despite the Biden Administration's shifts in rhetoric around immigration in comparison to the Trump Administration, the immigration agencies continue to possess many of the tools and structures that make retaliation against immigrants possible: access to a range of surveillance tools with minimized constitutional limitations, the power to detain and deport, the diffusion of responsibility and high concentrations within the lower ranks of the bureaucracy, and

[Page 1481]

political pressure to signal support for strict enforcement of the immigration laws.¹⁸

Additionally, several insights about immigration law more broadly emerge from examining retaliation against immigrants...