The president and immigration law redux.

Author:Cox, Adam B.
Position:III. The Institutionalization of Enforcement Discretion B. Supervision (Not Separation
  1. Supervision (Not Separation) of Powers

    The argument that "categorical rules" violate some requirement of "individualized discretion" really amounts to an argument that the supervision and centralization of discretion in immigration law are prohibited. The prohibition on centralization could be cast as a statutory directive, as a constitutional requirement, or as an imperative of good institutional design. So far as we are aware, no one has advanced the statutory argument-that Congress embedded in the immigration code a requirement that enforcement discretion be located exclusively in the hands of line-level enforcement personnel. This argument's absence is unsurprising, given that nearly all the statutory developments of the last several decades point in the other direction, promoting consolidation rather than diffusion within the Executive Branch of authority to make discretionary decisions about who should be deported. (224)

    Accordingly, we focus in this Part on the institutional and constitutional versions of the anticentralization claim. As a matter of institutional design, we show that the efforts in DACA and DAPA to centralize decision making have been significant administrative improvements on the practices of diffused prosecutorial discretion that preceded them. Second, we show that the notion that either the separation of powers generally, or the Take Care Clause in particular, constitutionalizes decentralization within the Executive Branch in the way imagined by critics of the relief programs is wildly implausible. (225)

    I. Institutional Design

    The long-term trend in American bureaucracy has been toward centralization-elevating decisions within agencies themselves, as well as above agencies into the Executive Office of the President. Political scientists and legal scholars from Terry Moe to Justice Elena Kagan have documented this trend, (226) and both unitary theorists on the right and advocates of presidential administration on the left have defended it. (227) Even recent developments in the Supreme Court's administrative law canon have promoted and (implicitly) defended administrative centralization. (228)

    Considered abstractly, of course, it would be difficult to identify a single, optimal level of centralization that applies across the bureaucracy to all (or even many) agencies and regulatory contexts. It is unsurprising, therefore, that a number of administrative law scholars have resisted Kagan's normative gloss on the centralization Moe describes. (229) In the critics' telling, centralization can diminish transparency, obscure lines of accountability, undermine expert decision making, and politicize agency action.

    But our argument that the Obama relief initiatives promote the more disciplined and accountable use of executive power does not depend on taking a side in this general debate. If the last two decades of scholarship prove anything, it is that the appropriate level of centralization cannot be determined in the abstract; whether and how to centralize depend on how the relevant institutions operate in practice. Those who have argued that Obama's relief programs are unconstitutional have mostly elided this institutional detail. But it is precisely this detail in the immigration setting that offers us a unique policy experiment with which we can actually assess the centralizing tradeoffs made by Obama's relief initiatives. If we evaluate the initiatives in terms of what they replaced, we see how they promise to significantly improve the ex post screening system by regularizing it through the supervision of line officials.

    Prior to DACA and DAPA, the Administration launched a prosecutorial discretion initiative that sought to preserve and guide line-level enforcement authority. The Obama Administration announced this initiative in June 2011 with the release of the so-called Morton Memos--directives that laid out the criteria the political leadership of Immigration and Customs Enforcement (ICE) and DHS wanted to govern the exercise of prosecutorial discretion by ICE employees. (230) The memos defined "prosecutorial discretion" broadly to encompass nearly every sort of enforcement decision made by ICE agents, including, crucially, the decision to initiate removal proceedings and the decision to grant deferred action. (231) As we noted in Part I, the memos were far from the first such documents; officials in both the Bush and Clinton Administrations issued guidance documents listing criteria intended to inform myriad discretionary enforcement judgments. (232) Yet both the content of the Morton Memos and the timing of their release, coinciding as they did with broader agency efforts designed to bring consistency to the system of screening noncitizens for deportability, led many advocates to see the memos as heralding a new era in which immigration discretion would be wielded on a more widespread and consistent basis. (233) This assumption may have been overly optimistic. The memos only articulated priorities; they did not indicate an intention not to remove low-priority targets, nor did they identify the means by which the priorities would inform the actual judgments of the line agents scattered across the country. By touting the memos, however, the Administration made a kind of political promise to shift the brunt of the enforcement system away from status violators and toward more serious offenders.

    Many of the Morton Memos' factors for exercising prosecutorial discretion (and granting deferred action) bear a marked similarity to the deferred action criteria eventually embodied in the Obama relief initiatives. The factors included an immigrant's length of residence in the United States, as well as educational history, family ties, and criminal record (or lack thereof)--factors closely related to the eligibility criteria for both DACA and DAPA. (234) Having been a child when one migrated to the United States-the keystone criterion under DACA--was also deemed important under the Morton Memos. (235) Although the factors in the Morton Memos were less precise and more numerous, and although the logical relationship among them was not well defined, their resemblance to the DACA and DAPA priorities is unmistakable. (236)

    Despite this resemblance, however, the Morton Memos did not have the immediate and obvious effects of DACA (and presumably of DAPA, once implemented), and perhaps for precisely that reason, they provoked much less public controversy than either of the Obama relief initiatives. (237) In the months following the memos' June 2011 release, there were few observable changes in the exercise of immigration prosecutorial discretion. According to widespread accounts, ICE continued to place immigrants who should have been among the lowest enforcement priorities in removal proceedings, routinely ignoring individual requests for deferred action. (238) Moreover, a large-scale review of over 300,000 ongoing removal cases, implemented in conjunction with the memos' release in order to identify those cases in which prosecutorial discretion was warranted, resulted in a very small number of case closures. (239) And while the fraction of criminal deportees did go up somewhat through this period, that trend appears to be largely the product of changes to other enforcement initiatives, not the Morton Memos themselves.

    Additional evidence of the Morton Memos' ineffectiveness can be seen in the operation of Secure Communities, another signature Obama enforcement initiative. That program, launched in the fall of 2008 by the Bush DHS, turned every local criminal arrest in the country into a point of immigration screening. (240) Universal screening at the point of arrest provides a tremendous amount of information to the federal government--information that can be used (and that the government has argued was designed to be used) to make decisions about removal both more consistent and more responsive to federal priorities. Under the program, federal officials, not local police, decided whether to place an immigrant identified through arrest data in removal proceedings. (241)

    If the Morton Memos had actually significantly impacted the decisions made by agency personnel about whether to place a particular immigrant in removal proceedings, one would have expected to see that impact reflected in the pool of immigrants arrested by ICE under Secure Communities; those memos applied directly to arrest decisions made by ICE agents under Secure Communities. Yet no effect was apparent in the wake of the Morton Memos' release. Figure 1 shows the composition of that pool over time, broken down by the criminal history of those apprehended and placed in deportation proceedings following notification to DHS as part of Secure Communities. (242) Two aspects of the Figure stand out. First, a large percentage of people placed in proceedings under the program had no criminal history at all: nearly a third had no criminal conviction, despite the fact that the program was publicly touted as a means of targeting "criminal aliens." (243) Second, the composition of the arrestee pool did not change at all after the Morton Memos were released. The arrest decisions of line-level ICE agents under Secure Communities looks much the same before and after June 2011.244 While the memos formally singled out noncitizens without prior convictions as lower priorities for removal, the reality on the ground was that they were just as likely to be arrested by ICE after the memos' announcement. (245)

    These data highlight the limitations of the Morton Memos' approach to producing meaningful changes in the exercise of immigration discretion. (247) In retrospect, this limitation of a guidance-document-oriented approach should not be surprising. The memos embody an effort to shift the culture of enforcement at the agency through an articulation by leadership of best practices. But even if agency leadership sought to monitor compliance...

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