A taxonomy of discretion: refining the legality debate about Obama's executive actions on immigration.

AuthorKagan, Michael
PositionPres. Barack Obama

On November 21, 2014, President Obama ordered a package of immigration policy reforms by the Department of Homeland Security and Department of Justice, including promises of work permits for parents of children who are U.S. citizens or legal residents. (1) The November announcements expanded a program the president announced in 2012, known as Deferred Action for Childhood Arrivals (DACA), through which certain young immigrants may request two-year promises of deferred action and employment authorization. (2) Even before that, President Obama's Director of Immigration and Customs Enforcement John Morton issued memoranda (known as the Morton Memos) summarizing factors that immigration enforcement officers should use in the exercise of prosecutorial discretion. (3)

With legislative immigration reform stymied in Congress, broad executive action has been the Obama administration's signature contribution to American immigration policy. The centerpiece of Obama's immigration actions has been expanded use of "deferred action" policies by which the Department of Homeland Security promises to refrain from seeking the deportation of certain people and offers them authorization to seek employment. The Obama administration has also made much more transparent how it categorizes and prioritizes noncitizens for immigration enforcement purposes. The result is that many immigrants who are unlawfully present according to the Immigration and Nationality Act (INA) now can secure the opportunity to work legally and receive written promises that the government has no immediate intention of seeking their removal.

Since the president had no new Congressional authorization to take these measures, his actions drew immediate objections from Republican lawmakers. (4) A few lawmakers, joined by at least one prominent immigration law scholar, have cited the president's actions on immigration as potential grounds for impeachment. (5) Within less than two months of the president's announcement, two federal district courts had reached opposite conclusions about whether the president's policies should be ruled unconstitutional by the judiciary. (6) Meanwhile, a coalition of 26 states has filed a complaint in another federal district court challenging the president's constitutional authority to implement the new policies and alleging that the president is acting to unilaterally change or suspend the law. (7)

Some legal scholars allege that the president's executive actions indicate a refusal to faithfully execute the law as required by the Constitution. (8) By contrast, the White House and a number of immigration law scholars have argued that Obama administration is merely exercising prosecutorial discretion and that there are many examples of previous presidents taking similar actions. (9) They argue that limited enforcement resources and the need to address humanitarian concerns in individual cases require such discretion and that such discretion is routinely exercised by law enforcement agencies.

Both sides of this debate fail to account for the variety of actions that the Obama administration has undertaken without obtaining Congressional approval and the different legal issues that arise with each type. Because backers of executive action have focused on precedents from previous administrations, their arguments imply that there is nothing substantively new about President Obama's actions. By contrast, claims that the president is refusing to enforce the law fail to address the reality that executive agencies routinely decide not to enforce laws rigidly in every possible case. As a result, the legal debate about the scope of the president's authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and it has not focused with precision on those areas where the president is acting within well-established authority and those areas where he has taken executive discretion into uncharted territory.

This Commentary aims to add new focus to the debate about President Obama's executive actions by defining five different types of presidential discretion: Congressionally authorized discretion, discretion to not enforce the statute in every case, discretion to authorize employment, publicizing nonenforcement policies, and establishing categorical criteria for deferred action. Table 1 summarizes this typology, with examples of each.

The Commentary summarizes the distinct legal issues that arise with each type of discretion. I have organized them as a continuum of legality with Type I and Type II having well-established legal foundations. The types at the other end of the spectrum, especially Type V, raise important separation of powers questions because they may be construed as a form of legislative rulemaking that conflicts with the terms of the INA. To be clear, I argue no more than that these types of executive action raise important questions about the extent of executive authority. I do not actually argue that they go beyond the president's constitutional powers, and I suspect that as implemented so far they are, in fact, permissible. But I leave that question for another day. In this essay I suggest simply that the debate over President Obama's immigration actions should be more narrowly focused on these types of programs.

This continuum is depicted in Table 2. 11

TYPE I: CONGRESSIONALLY AUTHORIZED DISCRETION

There are many parts of immigration law where the INA authorizes an executive agency to exercise discretion in order to carry out statutory mandates. (12) Congress has in fact authorized deferred action by name in specific situations. (13) The Obama administration has used such provisions to liberalize immigration laws in certain ways. For example, the INA imposes three- and ten-year bars on readmission of noncitizens who were previously unlawfully present in the United States for more than 180 days or more than a year, respectively. (14) But under the statute, the Department of Homeland Security (DHS) has discretion to waive the bar in certain cases where it would impose a particular kind of hardship. (15) In 2012, DHS issued new rules allowing noncitizens to apply to these waivers while still unlawfully present in the country, preventing applicants from becoming trapped abroad when their applications are denied, while also in effect making it somewhat easier for certain unauthorized immigrants to obtain a visa. (16)

Because these exercises of discretion are authorized by statute, there is little controversy about such decisions being within the powers of the executive. But some have made a more ambitious argument that these statutory authorizations to use discretion and explicit references to deferred action legitimize broader discretionary authority for the executive. (17) This strikes me as a difficult argument to sustain. The narrow specificity of these statutory provisions indicates that Congress did not want to authorize broader discretion. (18) By comparison, Canada's immigration statute explicitly gives the minister broad authorization to allow any immigrant to remain in the country. (19) The American immigration statute does not contain any such explicit grant of broad discretionary authority.

TYPE II: DISCRETION TO NOT ENFORCE THE STATUTE IN EVERY CASE

When the executive branch decides not to attempt to deport a noncitizen who is technically present in violation of the INA, the executive must rely on its implicit authority to exercise prosecutorial discretion. The most obvious form of prosecutorial discretion is the decision not to prosecute at all, and it is not unique to immigration law. Police do this as well as prosecutors when they decide not to arrest or cite people whom they know are technically in violation of the law. For example, most people believe that traffic police will not normally pull drivers over for driving just barely over the speed limit. (20) A common justification for nonenforcement is that law enforcement agencies have limited resources and must prioritize their work.

Although the Obama administration has brought new attention to deferred action policies, previous research has documented that such measures in the field of immigration date back at least to the Nixon administration. (21) Although limited resources are often given as a rationale for prioritizing enforcement against some people and not others, nonenforcement is also justified by more subjective value judgments. There are equitable concerns in individual cases where rigid enforcement of the law might seem harsh or cruel. (22) There are also situations where law enforcement agencies may decide that statutes still on the books are out of step with new social mores, even if the legislature has not repealed the measure. (23)

Nonenforcement discretion has received broad endorsement by the Supreme Court in the context of administrative law, and specifically in the context of immigration law. In Heckler v. Chaney, the Court found that a decision by an agency to not enforce a particular law in a particular case is "presumptively unreviewable." (24) In the immigration context, the Court found in Reno v. American-Arab Anti-Discrimination Committee that the executive has wide discretion to decide whether to initiate or continue deportation proceedings "for humanitarian reasons or simply for its own convenience." (25) In 2012, the Court issued its ruling on Arizona's anti-immigrant SB 1070 bill shortly after President Obama announced the DACA program. The Arizona majority reiterated that "broad discretion" is a "principal feature" of the immigration system. (26)

The Arizona Court expanded on the necessity for federal officials to use discretion as part of its explanation for why states should not be able to interfere in federal prerogatives about how immigration...

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