INTRODUCTION I. THE EXECUTIVE'S PATH TO DAPA. A. Forbearance from Removal 1. Discretion to Delay or Suspend Removal 2. Statutory Alternatives: Cancellation of Removal and Immediate-Relative Visas B. Collateral Consequences of Deferred Action 1. Lawful Presence 2. Work Authorization II. UNDERSTANDING THE OLC FRAMEWORK III. MODELS OF FAITHFUL EXECUTION IN ENFORCEMENT DISCRETION. A. The Constitutional Background B. The Evolution of Enforcement Discretion C. Judicial Understandings of Faithful Execution 1. Presumptions and Executive Discretion 2. Removal Cases D. Summary IV. BEYOND THE OLC FRAMEWORK A. Unreasonable Versus Unconstitutional Exercises of Enforcement Discretion B. Evaluating the OLC Framework C. The OLC Framework in Application 1. Enforcement Discretion and Collateral Consequences 2. Measuring DAPA Against the INA a. The Role of Congressional Inaction and Implied Approval b. Identifying Congressional Priorities CONCLUSION INTRODUCTION
On November 20, 2014, President Obama signaled a significant turn in U.S. immigration policy. Acknowledging Congress's failure to adopt a comprehensive overhaul of the nation's "broken immigration system," the President announced measures to "help make our immigration system more fair and more just." (1) The centerpiece of the announcement was a program allowing certain illegal immigrants with children who are U.S. citizens or lawful permanent residents "to apply to stay in this country temporarily without fear of deportation." (2) Secretary of Homeland Security Jeh Johnson issued a memorandum directing the head of U.S. Citizenship and Immigration Services to develop a process for such immigrants to seek a discretionary form of relief from deportation known as "deferred action." (3) Under the program, the parent of a U.S. citizen or lawful permanent resident would be eligible for deferred action if the parent (1) has resided continuously in the United States since before January 2010; (2) is not an enforcement priority under simultaneously issued Department of Homeland Security (DHS) guidance; and (3) presents "no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate." (4) Johnson ordered U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officials to consider anyone they encounter for program eligibility, including individuals in custody or with pending removal cases, so as to "prevent the further expenditure of enforcement resources" on potential beneficiaries of deferred action. (5) A recipient of deferred action would be considered "lawfully present in the United States" (6) for a period of three years, and would be "eligible to apply for work authorization" for that period. (7)
In announcing the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), the President asserted that his actions were "the same kinds of actions taken by Democratic and Republican presidents before me." (8) Previously, however, the President had acknowledged that broad relief from deportation would require congressional action. (9) The Administration thus anticipated significant controversy over the program's legality. The Justice Department's Office of Legal Counsel (OLC) had prepared a thirty-three page opinion addressing the legal basis of DAPA, including elements of an earlier proposal that it concluded were beyond the President's authority. (10) The administration released that opinion when it announced the program. Secretary Johnson's implementing memorandum, moreover, sought to place the policy within a safe harbor from judicial review. Administrative enforcement discretion is an entrenched feature of our federal system--a tool that Democratic and Republican Presidents alike have used to accomplish policy objectives and one with which courts have been reluctant to interfere. The Johnson memorandum thus characterized DAPA as involving the exercise of "prosecutorial discretion through the use of deferred action, on a case-by-case basis." (11)
The battle over DAPA's legality moved quickly to the courts. A federal district court in Texas enjoined the implementation of the program, (12) and the U.S. Court of Appeals for the Fifth Circuit affirmed. (13) Both courts, however, skirted a key question about the Executive's authority to adopt DAPA. (14) DAPA's critics had argued not only that DHS s proposed deferred action program violated procedural requirements constraining agency action and substantive restrictions in the Immigration and Nationality Act (INA), (15) but also that the program violated the Constitutions admonishment that the President "shall take Care that the Laws be faithfully executed." (16) The lower courts did not address that claim. In granting certiorari in United States v. Texas to review the lower courts' determinations that DAPA is unlawful, however, the Supreme Court directed the parties to brief and argue "[w]hether the [DHS guidance on deferred action] violates the Take Care Clause of the Constitution, Article II, [section] 3." (17)
With a one-sentence per curiam opinion in United States v. Texas, an equally divided Supreme Court affirmed the Fifth Circuit's decision. (18) Although the Court did not reach the question of DAPA's constitutionality, DAPA provides an interesting lens for exploring the President's obligation of faithful execution. The text of the Faithful Execution Clause (19) frames two aspects of the debate over the scope of administrative enforcement discretion. First, one can view the clause as discretion-granting: in conferring or recognizing the President's power to "execute" the law, the clause seemingly embeds some flexibility to decide when and how to exercise that power. Second, one can view the clause as discretion-limiting: the clause calls for the President not merely to ensure that the laws be executed, but that they be "faithfully" executed.
This Article uses DAPA to explore the tension between the discretion-granting and discretion-limiting features of the Faithful Execution Clause. Guidance from the courts on the scope of administrative enforcement discretion is sparse, and likely to remain so. The OLC opinion on DAPA's legality attempted to develop a framework for determining when an exercise of enforcement authority breaches the Executive's constitutional obligations of faithful execution. That framework embeds certain immigration-specific elements, but its potential relevance transcends the immigration context. It is worth asking, then, both what the Faithful Execution Clause means and whether the OLC framework properly measures and constrains the scope of administrative enforcement discretion.
The Faithful Execution Clause, I argue, has not and likely will not prove decisive in disputes in court over the scope of administrative enforcement discretion. That is not, however, because the Faithful Execution Clause does not constrain executive conduct. The clause demands that the President ensure that his subordinates act in good faith in enforcing the law. Whether the clause itself imposes a duty of good faith on the President's subordinates is a complicated question. Even if it does not impose such a duty, the clause necessarily requires that the President have the tools to do so.
This understanding of the Faithful Execution Clause calls into question certain aspects of OLC's framework for evaluating DAPA. First, OLC's framework for assessing administrative enforcement discretion collapses the line between constitutional law and ordinary law, and neglects the latter. While the framework does seek to test the substantive fit between DAPA and the INA, that analysis is necessary not (or not only) as part of an inquiry into whether DAPA is consistent with an obligation of faithful execution, but because the law otherwise requires the alignment of DAPA with the INA. Collapsing the constitutional and statutory layers of the analysis permits OLC to countenance significant departures from Congress's statutory scheme.
Second, although OLC's framework in some respects properly seeks to evaluate whether exercises of enforcement discretion are undertaken in good faith, the framework effectively creates a presumption of good faith even with respect to categorical exercises of enforcement discretion--i.e., those exercises of enforcement discretion that are most likely to conflict with a good-faith interpretation of the underlying statute. Third, even to the extent that the framework demands executive officials' good-faith interpretation of the underlying statute, the challenges of interpreting the statute at issue here--the INA--produce few constraints on executive action.
This Article proceeds as follows. Part I briefly describes the tool of deferred action in immigration law, its implementation in an earlier executive program, Deferred Action for Childhood Arrivals (DACA), and the proposed extension of deferred action that ultimately culminated in DAPA. Part I also outlines the statutory and regulatory backdrop governing benefits and work authorization for individuals who lack legal immigration status but whom immigration officials forbear from removing. Part II explores the analytic framework and key conclusions of the OLC opinion as to the latitude of the executive branch's enforcement discretion. Part III then examines the modest textual, structural, and historical clues to the meaning of the Faithful Execution Clause. The Supreme Court has invoked the clause in a variety of contexts, and this Part considers the scope and significance of these cases for our understanding of the clause. Part III considers what constitutes faithful execution and by what mechanisms the duty the clause imposes carries to the President's subordinates. Part IV revisits the OLC framework in light of the understanding of the Faithful Execution Clause that Part III develops.
It is important to note that my analysis and conclusions address...