The president and immigration law redux.

AuthorCox, Adam B.
PositionII. The Substantive Grounds of Enforcement Discretion through III. The Institutionalization of Enforcement Discretion A. Rules and Standards, p. 142-183
  1. THE SUBSTANTIVE GROUNDS OF ENFORCEMENT DISCRETION

    Everyone debating the Obama relief initiatives agrees on two basic points. First, all acknowledge that executive branch officials have some discretion to decide whether and when to initiate a prosecution in an individual case. This understanding represents the paradigm case of the Anglo-American concept of "prosecutorial discretion." Even those who insist most strongly on a constrained Executive accept this discretionary authority over charging decisions in both criminal and civil contexts. (113) Second, all participants agree that the President cannot decline to enforce altogether a law that is constitutional. Such an effort to "suspend" the law would amount to an abdication of his Article II obligation to "take Care that the Laws be faithfully executed." (114)

    But how do we distinguish the constitutional exercise of prosecutorial discretion from an impermissible abdication of the President's duty to enforce the law? Putting aside purely formal arguments about the distinction between permissible "underenforcement" (115) and impermissible "suspension," which suffer from serious conceptual problems, (116) claims about how to draw this distinction typically take one of two forms. The first searches for principles that limit the substantive criteria that can serve as a basis for prosecutorial discretion. The second focuses on the way the Executive institutionalizes the criteria--that is, on how the Executive structures its decision malting to take account of substantive criteria it has defined as relevant.

    Prior to President Obama's November 2014 announcement, few commentators had taken the first tack of focusing on whether the substantive grounds of relief in the President's potential programs were themselves unlawful. (117) But that changed when the Office of Legal Counsel (OLC) released a legal opinion to accompany the President's unveiling of DAPA. Before the President announced his new relief policies, the Secretary of DHS and the White House Counsel turned to OLC, proposing two deferred action programs and seeking advice as to whether they were lawful. OLC found one within the Executive's authority and the other not. (118) OLC's opinion honed in on the President's substantive priorities, asking whether the central criteria for relief- being a parent of a U.S. citizen, for example--were lawful. The answer, according to OLC, could be found by asking whether providing relief to those singled out advanced "congressional priorities" embedded in the INA.

    Though OLC developed its congressional priorities approach in response to a direct question about the lawfulness of DAPA, the opinion's analytic framework transcends the details of any one scheme of enforcement discretion. In our assessment of it, then, we aim simultaneously to address the particularities of DAPA (as well as DACA) in order to help resolve the debate currently raging about these specific programs, as well as to consider the viability of a congressional priorities framework for understanding any general limits on enforcement discretion, which can take numerous forms. In other words, even if DAPA were never implemented (119) and DACA were invalidated as the result of final federal court judgments (120)--outcomes we are skeptical will come to pass--evaluating the congressional priorities approach would remain an important task.

    Putting aside one puzzling aspect of OLC's congressional priorities approach--that it elevates an ordinary argument about agency compliance with statutory obligations into a constitutional argument about the President's Article II obligations--the basic analytic framework of the "congressional priorities" approach seems straightforward. (121) But its seemingly straightforward quality turns out to be an illusion. As we explain in this Part, tying executive discretion to congressional priorities cannot provide a satisfying limiting principle within immigration law because, for the vast majority of enforcement choices that must be made, there are no coherent congressional priorities to be extracted from the Code. Any inquiry into congressional priorities is thus likely to be futile, which is why the dueling accounts of those priorities supplied by OLC and its critics are both unpersuasive. Moreover, in addition to providing little interpretive guidance, the congressional priorities approach perpetuates a "faithful-agent" model of law enforcement that is neither descriptively accurate nor normatively attractive. Executive branch policymaking through enforcement actually advances certain goals of our scheme of separated powers. When it comes to the exercise of the enforcement power, therefore, we should embrace what we refer to as the two-principals model of decision making that has emerged in practice.

    1. Congressional Priorities and Faithful Agents

      Though we ultimately disagree with the OLC opinion's approach, the opinion reflects the best instincts of OLC: that significant and novel executive branch policies ought to be scrutinized and that such scrutiny is doubly important when the exercise of power is unlikely to be reviewed by courts and raises potential separation-of-powers concerns. (122) The independence of the Office's judgment is also reflected in an aspect of the opinion Administration detractors seem to overlook: its conclusion that one of the President's proposed initiatives was beyond his authority. Though OLC frequently advises the President that a proposed course of action would not be lawful, (123) such advice is rarely made public, making the release of the opinion itself a remarkable event. In taking on the task of crafting a principle to limit a highly malleable form of executive authority, OLC's actions highlight that law constrains the President's actions.

      Two crucial legal conclusions structure the analysis in the OLC opinion. First, the opinion rejects the idea that "resource constraints" provide a meaningful principle for limiting enforcement discretion. (124) Many defenders of broad deportation relief had pressed that as a limiting principle. But OLC was right to reject it; as a limiting principle, it is virtually meaningless. (125) The existence of resource constraints obviously provides a sufficient condition for the exercise of prosecutorial discretion. If the Executive lacks the resources to pursue every violator of the law, she must make choices about which ones not to pursue--that much is a truism. But resource constraints are not a necessary condition for the exercise of discretion: the paradigmatic historical justifications for prosecutorial discretion have little or nothing to do with resource constraints. And even were one to reject this history and conclude that resource limits should be considered necessary, the ubiquity of resource constraints would prevent this principle from providing any meaningful constraint on the exercise of executive authority. DHS has been showered with resources and operates with a budget larger than all other federal law enforcement agencies combined. Yet DHS could ignore broad swaths of the immigration code and still spend its appropriated dollars. After all, DHS currently spends its full appropriation every year and still manages to deport only a tiny fraction of the potentially removable noncitizens living in the United States. (126)

      Instead of looking to financial constraints, OLC concluded that a limiting principle could be supplied by "congressional priorities" embedded in the Code: these priorities, it concluded, constrain the substantive criteria that can lawfully serve as the basis for deportation relief. (127) In its opinion, OLC determined that, where the decision to grant relief tracked priorities the Office unearthed from the statute, such as keeping intact the families of citizens and lawful permanent residents, relief fell within the permissible zone of discretion. (128) But where OLC believed that the relief could not be tightly linked to priorities embodied in existing statutory provisions, it concluded that the Executive was without legal authority to act. (129) The opinion surveys numerous executive branch uses of deferred action and emphasizes that Congress was aware of them, seeming to use past practice as a form of precedent. But the opinion then turns to determine whether the President's new proposals building on that history are, in fact, "consonant with, rather than contrary to," (130) priorities derived from the statute itself. (131) OLC ultimately determined that the decision in DAPA to provide relief to the parents of U.S. citizens and green card holders would promote congressionally articulated priorities, but that a proposed program to provide relief for the parents of DACA recipients would not.

      To our knowledge, the notion that the exercise of enforcement discretion is lawful only if consistent with congressional priorities had not yet emerged as a claim in the debate at the time OLC issued its opinion. At that moment, we had not yet seen defended elsewhere the idea that executive priority setting ought to be informed by the Executive's own analysis of the enforcement obligations (and forms of relief) Congress thought most important. At the same time, the approach feels familiar. It aligns analysis of presidential enforcement authority with the way courts (and offices such as OLC) decide whether administrative agencies have lawfully exercised their delegated authority. This focus on consistency with congressional priorities in the context of administrative rulemaking reflects the dominant approach to administrative law, in which principal-agent models--both informal and formal--are used to conceptualize and evaluate the administrative state. (132) When we characterize Congress as the principal and the Executive as its agent, the obvious question becomes whether the agent is promoting his principal's goals or, instead, advancing his own. The turn to congressional...

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