Balkinization: Even if it’s lawful . . . should we be concerned that it might set a dangerous precedent?

Even if it’s lawful . . . should we be concerned that it might set a dangerous precedent?

Marty Lederman

[For the Symposium on Administrative Reform of Immigration Law]

Let’s assume OLC is correct that the new Obama/DHS immigration initiative complies with all of the relevant immigration laws. Even so, was it unwise, or regrettable, for the President to go down this road because the exercise of the sort of enforcement discretion at issue in this case might set a dangerous precedent that future executives could exploit? I addressed this question briefly in Point 7 of my original post. Several commentators, however—include some who are quite sympathetic to the substance of the President’s initiative—continue to be anxious about what the new initiative portends for the future. Which is understandable: After all, who among us would be entirely comfortable with a common practice in which an executive agency invokes "enforcement discretion" as a ground for declining to enforce statutes that it (or the President) disfavors on policy grounds?

I thought it might therefore be worthwhile to examine the question a bit more closely. I hope that what follows might, at least in part, allay such concerns about whether the new immigration policy would establish a dangerous precedent.

It’s nothing new: But does that make it even worse?

In my earlier post I stressed a point that many other supporters of the immigration initiative have also emphasized—namely, that this can’t be a groundbreaking precedent because it’s nothing new under the sun: Executive agencies establish these sorts of broad, categorical enforcement priorities all the time. Moreover, in doing so, agencies often assign “low priority” to enforcement of certain laws because they consider (or the sitting President considers) those laws to be unwise, or immoral, or trivial, or a waste of precious resources, or treading upon important constitutional values (even if it is not actually unconstitutional).

To tick off only a few conspicuous examples: Most administrations have in recent decades brought virtually no obscenity prosecutions (often channeling many of their resources to child pornography cases instead). Few if any prosecutions are initiated for marijuana possession—even, recently, in Colorado and Washington, where state law does not pick up the slack. And the Civil Rights Division in recent Republican Administrations has largely eschewed bringing disparate impact discrimination cases.

Most analogous to the current example, perhaps, are the "desuetude" cases, in which executives rarely prosecute laws that have lost most of their popular support (even if there is not sufficient political wherewithal to repeal them). See, e.g., Poe v. Ullman, 367 U.S. 497, 502-03, 508 (plurality opinion) (1961) (Connecticut practice respecting ban on contraceptive use); Lawrence v. Texas, 539 U.S. 558, 573 (2003) (describing "pattern of nonenforcement" of sodomy laws "with respect to consenting adults acting in private"). Or cases in which everyone knows that enforcement is rare, bordering on nonexistent, in particular applications, which establishes a new norm of behavior by the regulated actors--think, for example, of police not enforcing a 55-mile-an-hour speed limit for persons driving under 65 or so.

In a recent post, Mike Dorf acknowledges that this sort of selective, categorical disfavoring of enforcement of particular laws is a common practice—but in his view that’s all the more reason to be concerned about adding the new immigration removal policy to the list, because the common practice is something to be bemoaned, not emulated: “[T]here is a legitimate question,” he writes, “of whether this policy and many others pursued in the past by presidents of both parties push the notion of prosecutorial discretion too far.” In other words, perhaps this new immigration policy will only exacerbate a serious preexisting problem.

In particular, Mike worries that a decision “not to enforce a law at all in the face of a contrary congressional judgment . . . would be a serious threat to separation of powers." Accordingly, Mike writes that "to the extent that Obama's immigration policy ends up being used politically as a precedent for truly dangerous executive overreach by a future (Republican or Democratic) president, I worry that my friends who signed a scholars' letter that makes the same sorts of measured arguments found in the OLC memo may live to regret doing so.”

In his very thoughtful contribution to this symposium, my former OLC colleague Zach Price echoes Dorf's concern: “[I]n the long run,” Zach writes, “Democrats may have more to fear than Republicans from erosion of norms against policy-based non-enforcement. Amid our deeply polarized politics, Democrats are the party more committed in principle to the value of regulation in improving social welfare and restraining undue private power. Non-enforcement is a fundamentally deregulatory power: it is a power to strip force from statutory requirements though executive inaction. Republican Presidents have used it as such in the past. Democrats should worry about how they might use it in the future.”

And in a comment to Mike Dorf’s post, Mike's colleague Steve Shiffrin offers some examples of the sort of thing he, Mike and Zach are worried about: What if President Reagan had gone ahead with his suggestion of not prosecuting those who do not pay their capital gains taxes? Or what if the next Republican administration opts not to prosecute Affordable Care Act objectors who refuse to maintain insurance or pay the tax the Court upheld in NFIB v. Sebelius? Steve asks: “Would the principles of the Obama policy permit a Republican President to engage in this form of prosecutorial discretion?”

There are, I think, several reasons why perhaps Mike and Zach and Steve—and the rest of us—should not be so concerned that the new immigration policy will establish such a worrisome precedent.

1. The common practice does not immunize—and might not even encourage—violations of the law

For one thing, the hypothetical cases that Mike and Steve posit would not encourage lawbreaking to the extent they appear to assume—particularly in those cases where Executive branch enforcement priorities are likely to change from administration to administration.

As I noted in my earlier post, even if an executive were to announce a policy of categorical nonenforcement of a particular law (which rarely happens and has not happened here), such an announcement would not give private parties a free pass to, e.g., pollute, or to engage in workplace policies that have a disparate racial impact, or to withhold taxes, or to possess marijuana, etc. In such cases, the violators would remain culpable, and subject to subsequent punishment, for the actions they undertook during the period of the executive’s nonenforcement policy: Potential fines would accrue every day, and where the law in question is a criminal offense, the actors might later be convicted.

And in a case where there is a nonnegligible risk of a change in enforcement priorities in a future administration, the primary actors will be loath to expose themselves to such consequences. So, for example, even if a future President Rubio, say, were to announce that his administration will make prosecution of those who fail to pay their ACA taxes a low priority, it's highly unlikely that announcement would induce many individuals to both decline to maintain health insurance and fail to pay the IRS, because they would know full well that in the next administration their tax burden, and their potential criminal prosecution, would be substantial. (Moreover, the concern about inviting violation of the law by the regulated parties is, if anything, less pronounced in the context of the new immigration initiative because (as I discuss below) it is not unlawful for the aliens in question to remain in the United States.)

* * * *

Even more importantly, the new immigration initiative is not the sort of decision that raises the concerns Mike Dorf identifies—because it is not, in his words, a decision (i) “not to enforce a law at all,” nor it is (ii) “in the face of a contrary congressional judgment.”

Let’s consider these two prongs in turn:

2. The Obama/DHS initiative is not a decision to categorically decline to remove certain classes of aliens

This is not a case in which DHS is (in Mike’s words) declining “to enforce a law at all.” There has been no announcement, or decision, that DHS will not remove any and all aliens who are newly entitled to deferred action status: To the contrary, Immigration and Customs Enforcement Field Office Directors will be specifically instructed that they may initiate removal proceedings for any covered alien if it would serve “an important federal interest.” (To similar effect, the most recent DOJ policy on enforcement of marijuana possession laws, which Mike also invokes, states that “nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.”) In other words, like many other analogous cases, the new policy establishes only a priority, not a guarantee of nonenforcement.

The OLC opinion repeatedly stresses the importance of the fact that the prospect of possible enforcement remains present in the case of any particular undocumented alien:

-- “[T]he policy provides for case-by-case determinations about whether an individual alien’s circumstances warrant the expenditure of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials. For these reasons, the proposed policy avoids the difficulties that might be raised by a more inflexible prioritization policy and dispels any concern that DHS has either undertaken to rewrite the immigration laws or abdicated its statutory responsibilities with respect to non-priority aliens.” (p. 11)

-- “[O]ur preliminary view was that [the earlier DACA] program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis.” (p.18 n.8)

-- “The guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief. “ (p.23)

-- “[A]ny new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement.” (p.24)

3. The Obama/DHS initiative does not conflict with any statutory directives concerning, or limits on, DHS removal practices

Mike worries about a nonenforcement policy that would be “in the face of a contrary congressional judgment.” But as I emphasized in my earlier post, OLC specifically acknowledged (see pp. 4, 6 of its opinion) that Congress could legislate limits on enforcement discretion that DHS would be obliged to follow. OLC properly cites Heckler v. Cheney for the proposition that an agency may not “disregard legislative direction in the statutory scheme that [it] administers.” Thus, for example, if a statute directed DHS to prioritize certain sorts of removal cases, DHS would be obliged to do so. Or if Congress were to designate certain appropriated funds exclusively for the removal of undocumented alien parents of U.S. citizens, DHS would have no choice but to use those funds for that purpose. Indeed, it was essential to OLC’s ultimate conclusion that the new DHS policy would be “consonant with, rather than contrary to,” any statutory directives (indeed, any “policy decisions as reflected in the governing statutes”). OLC even went so far as to opine that it would not be permissible for DHS to afford deferred action status to so-called “DACA parents,” because that would (according to OLC) be contrary to an implicit statutory limit on prosecutorial discretion.

As I understand the immigration laws, however, and as OLC sets out at length at pages 4-5 of its opinion (citing an array of statutes and cases such as Arizona v. United States (2012)), the policies that the President announced on Thursday do not transgress any current statutory limits on DHS’s authority to establish enforcement priorities. Congress has expressly charged DHS with responsibility for “[e]stablishing national immigration enforcement policies and priorities”; the statutes impose very few, if any, requirements for or limits on DHS’s removal practices; and the statute even lacks an express requirement that DHS engage in any removal actions.

Does this mean that DHS could categorically refuse to remove any aliens at all? Probably not. I assume it is only fair to read the agency’s appropriations statutes (which I have not studied), in conjunction with the background INA and DHS statutes cited at page 4 of the OLC opinion, as at least implicitly requiring that DHS expend a certain amount of resources on efforts to remove undocumented aliens.

The new initiative, however, will not affect that statutory directive in the slightest. DHS will spend all of its appropriated funds (i.e., the agency will not engage in any “impoundment”), and the deferred action policy will not materially affect the total number of aliens the agency removes from the U.S. The new policy will, instead, merely alter, in relatively small measure, which particular aliens the agency removes.

Therefore, from all that appears, the new policy will not in any sense prevent DHS, or any other federal officials, from faithfully executing the laws that are directed to the federal government itself, i.e., the statutes that regulate the enforcement of the removal laws.

* * * *

4. The Obama/DHS initiative will not “effectively rewrite the laws” regulating private parties

I hope what I’ve described above will give Mike and others like him some comfort . . . but still, I imagine that something more might be troubling them, as well. And I suspect it has something to do with the intriguing notion, in the OLC opinion, that “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.”

As I’ve explained above, the new deferred action policy, like many of the other common examples of agencies establishing disfavored enforcement priorities (e.g., marijuana possession, disparate impact cases, etc.), does not “effectively rewrite the laws” regulating the government’s own statutory enforcement responsibilities, based upon “policy preferences” or otherwise. But I think what OLC had in mind with that statement—and perhaps what Mike is referring to, as well—is not so much a “rewriting” of the laws governing what the federal government must do, but instead a concern that an agency enforcement practice might, in effect, “rewrite” the underlying laws regulating private party conduct, such as the provision of the Controlled Substances Act that makes it illegal to possess marijuana.

So what are those underlying laws, regulating private parties, that might in theory be effectively “rewritten” by DHS enforcement practices? I think it is useful here to distinguish the laws regulating two different types of private actors—(i) aliens themselves, and (ii) employers. The new policy does not, I think, do anything to affect, let alone “rewrite,” the laws regulating the conduct of aliens themselves. The question is a bit trickier, however, with respect to the laws governing those who would employ such aliens, because the new policy does affect which of their employment decisions will be unlawful. Therefore it is that statutory question—involving DHS’s authority to grant so-called “work authorizations”—that warrants the closest attention here.

Aliens themselves

In his post, Zach Price worries that the new policy--or other forms of declared enforcement nonpriorities--might in effect "invite a significant subset of regulated parties engaged in a continuing violation to apply for a promise (even a formally revocable one) that the law will not be applied to them." If that's what this policy did, I, too, might be concerned. But it doesn't do so, for two reasons: There's no promise; and there's no continuing violation by the regulated parties.

i. As I explained above, even in cases of criminal prohibitions, when the Executive decides that it will disfavor prosecutions of a particular offense, that does nothing to change the legal effect of the underlying law on the regulated parties. For one thing, the Executive rarely if ever disclaims any and all intent to prosecute: Instead it typically reserves the authority to prosecute in cases that “serve an important federal interest,” as DOJ has done recently with its marijuana-possession enforcement policy in Colorado and Washington. More importantly, in such cases the Executive does not ordinarily inform the regulated parties that they are free to violate the law—that is, the Executive does not immunize them from possible sanction, even for conduct undertaken during the pendency of the government’s lax enforcement policy. In such cases, the government can always “reach back” and prosecute a party for having violated the law at a time when prosecution was a low government priority.

Therefore, even if federal law made it unlawful for undocumented aliens to be present in the United States, the President’s new policy would not eliminate any possible sanctions for that misconduct, let alone offer any “amnesty” from future penalty or removal. (Ahilan Arulantham is therefore simply wrong in suggesting that the deferred action status is akin to "a program to give people licenses to possess marijuana for three years, notwithstanding Congress’s decision to ban its possession." It is nothing of the sort and, except for its impact on employers' hiring practices, discussed below, it does not "license" anyone to do anything that federal law otherwise forbids.)

ii. But the deferred-action initiative is even less troubling in this regard than the marijuana example, because it is not a violation of federal law for an undocumented alien to remain in the United States. Although 8 U.S.C. 1325(a) makes it a misdemeanor for an alien to enter the United States “at any time or place other than as designated by immigration officers,” an undocumented alien has no legal obligation to leave the U.S. once she is present here. (That’s why “illegal alien” is a misnomer.)

Accordingly, the new enforcement policy will in no sense “rewrite the laws” regarding the legality of aliens’ conduct. It was lawful for such an alien to remain in the United States before Thursday; and it will remain lawful going forward.

Employers

Although the deferred-action policy therefore would not affect compliance with the law by federal officials or by aliens, the question is more complicated when it comes to a third set of actors—employers, because the new deferred action status does affect their legal obligations: It permits employers to hire and employ undocumented aliens who enjoy the new deferred-action status “on a showing of economic necessity,” something that would have been §illegal for the employers to do but for the new policy.

The text of the relevant statutory law is not too complicated: The Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(a), generally makes it unlawful to hire or employ an “unauthorized alien.” The statute in turn defines “unauthorized alien” to mean an alien who is neither lawfully admitted for permanent residence nor “authorized to be . . . employed by this chapter or by the Attorney General.” Id. § 1324a(h)(3). IRCA thus expressly provides that the Attorney General may authorize non-admitted aliens to be eligible for employment, notwithstanding the general prohibition in § 1324a(a). (Congress later transferred this and other immigration-related authorities from the AG to the Secretary of DHS.)

This is, then, the critical question: Does the Secretary of DHS have an unlimited authority under subsection 1324a(h)(3) to afford such “work authorization” to any and all undocumented aliens, or, at a minimum, to those who he has now designated for “deferred-action” status?

OLC addresses this question at pages 21-22 & note 11 of its opinion. The gist of its analysis is this:

-- Before enactment of IRCA in 1986, the INS itself imposed similar employment restrictions, from which it exempted certain aliens with “deferred-action” status. Congress enacted IRCA’s employment restriction against this historical administrative backdrop; and in IRCA Congress included the express exception in § 1324a(h)(3), quoted above, for aliens who are either lawfully admitted for permanent residence or authorized by the statute itself to be employed or “authorized to be . . . employed . . . by the Attorney General."

-- The year after IRCA was enacted, the Federation for American Immigration Reform (“FAIR”) petitioned the INS to rescind its employment authorization regulation. FAIR argued, in particular, that IRCA had rescinded the Attorney General’s authority to grant work authorization “except to those aliens who have already been granted specific authorization by the Act.” The INS rejected FAIR’s argument, reasoning that “the only logical way to interpret [the IRCA] phrase [‘authorized to be so employed by this Act or the Attorney General’] is that Congress, being fully aware of the Attorney General's authority to promulgate regulations, and approving of the manner in which he has exercised that authority in this matter, defined ‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the regulatory process, in addition to those who are authorized employment by statute.” 52 Fed. Reg. 46092, 46093 (Dec. 4, 1987).

Accordingly, since 1987, the INS (now ICE) has authorized employers to hire undocumented aliens who have been afforded “deferred action” status, and has interpreted IRCA not to prohibit such work authorization.

-- OLC then points to three things about the Immigration and Naturalization Act, in addition to this administrative practice since 1987: (i) the Act requires the Secretary to grant work authorization to particular classes of aliens; (ii) it places few limits on the Secretary’s authority to grant work authorization to other classes of aliens; and (iii) several provisions of the INA “expressly contemplate” that the Secretary may grant work authorization to aliens lacking lawful immigration status—including some who are in active removal proceedings or, in certain circumstances, who have already received final orders of removal.

OLC doesn’t ever quite say whether it would agree with DHS’s longstanding post-IRCA administrative interpretation of § 1324a(h)(3) if it were looking at the question from scratch. Instead, it relies upon three considerations in support of its conclusion that the new work authorizations would be lawful:

(i) that the Secretary’s longstanding practice of permitting certain classes of aliens who lack lawful immigration status to apply for work authorization, including deferred action recipients who can demonstrate an economic necessity for employment, is “[c]onsistent with” the various provisions of the law that OLC identified;

(ii) that “considerable weight must be accorded” the INS’s “contemporaneous interpretation of the statute it is entrusted to administer” (note 11);

and

(iii) that Congress has long been aware of that INS/ICE interpretation and has never taken steps to limit the Attorney General’s (later the Secretary’s) authority to afford work authorization to new classes of deferred action recipients.

I don’t know enough about IRCA, and the administrative practice under it for the past 27 years, to say for certain whether the agency’s interpretation of the Secretary’s authority under § 1324a(h)(3) is permissible. Especially in light of the plain, unconditional language of that statutory provision, however, I think it would have been somewhat remarkable for OLC to reject DHS’s construction, given that the agency has been broadly and openly construing the work-authorization power of the AG/Secretary in this manner for almost three decades.

And if OLC was correct not to repudiate that 27-year-old administrative interpretation, then there is no reason to fear that the new initiative will effectively “rewrite the laws” governing the conduct of employers, any more than it will “rewrite the laws” governing the conduct of aliens or of DHS itself.

Posted 8:21 PM by Marty Lederman [link]