Wednesday, November 26, 2014

Concluding Thoughts: Line Drawing, the Separation of Powers, and the Responsibilities of the Political Branches

Guest Blogger

Adam B. Cox & Cristina M. Rodriguez

For the Symposium on Administrative Reform of Immigration Law

Before we weigh in with our final thoughts, we would first like to thank Jack Balkin for generously making this forum available to us, to explore the implications of President Obama’s latest and sweeping use of his executive authority to reform immigration law. We also are indebted to the wonderful collection of scholars and attorneys who contributed their thoughts, almost in real time, to a debate that is sure to continue and that has potentially profound implications for law enforcement and the administrative state. Encountering the number of different ways “in” to our central question—whether the President acted within the relevant legal authorities—has been fascinating and highly educational.

Though our own central preoccupation has been with the separation of powers dynamics reflected in this latest episode of presidential action, we also are mindful of the human and family interests at stake and the considerable work that remains to be done, by both of the political branches and the American people, to build a just and effective system of immigration law and enforcement. Happy Thanksgiving to all.


There is widespread agreement that the Executive Branch may exercise prosecutorial discretion in individual cases, incorporating humanitarian factors and efficiency concerns into its judgments about which cases to pursue. And there is nearly universal agreement that the President may not decline to enforce the law, or “rewrite” Congress’s laws, to put it in terms used by OLC. But the vast space between these two poles is where the debate over the President’s initiatives lies.  Over the last several days—both on this blog and around the nation—that debate has crystalized around four central questions concerning the legality of the administrative relief laid out by President Obama last Thursday. 

(1) To be lawful, must relief be closely tied to statutorily articulated congressional priorities?

(2) Is it permissible for prosecutorial discretion to be exercised “categorically,” or must it proceed on a “case-by-case” basis?

(3) Does the fact that the President’s actions extend a benefit—work authorization—rather than just withhold a sanction affect their legality?

(4) Is the relief simply too big in scope to constitute a lawful exercise of prosecutorial discretion?

The first two arguments have played a big role in nearly everyone’s analysis of the President’s actions—including OLC’s—while the second two have been peripheral.  This is somewhat surprising, because in the days and months leading up to the President’s announcement, questions three and four dominated the debate; critics of what was to come seemed most exercised about the sheer scale of any potential relief program, and about the decision to authorize unlawfully present immigrants to work.

We do not yet have a good account of why questions three and four have receded, though one possibility is that the work authorization question quickly came to be seen as a matter of  straightforward statutory delegation (for the reasons Marty Lederman echoes in his last post), while the question of permissible scale came to seem utterly intractable.

We are not yet sure that either of these conclusions is quite correct. On the scale question, in particular, we think one strain of the debate that attempts to allay concerns about size is incomplete. Just as we think that resource constraints are not a necessary condition for the exercise of prosecutorial discretion, we do not think their presence is a sufficient justification for a deferred action program. Accordingly, we are not fully persuaded by the one theory of scope that emerges from the OLC opinion and that Steve Legomsky and Marty Lederman have made more explicit.  On that theory, if the President only has the resources to remove up to 400,000 people per year, then deferring the deportation of millions cannot amount to an abdication of his duty, because the President will continue to consume all of the enforcement resources that Congress has allocated. This response has the virtue of being elegant, but it also proves too much.  Short of granting relief to nearly all 11 million unauthorized immigrants, the President will always be able to use up the enforcement resources appropriated by Congress. But because the resources it takes to deport a person almost certainly increase as the pool of deportable persons shrinks, these resources will be consumed identifying and deporting a smaller and smaller number of people.

For purposes of this final post, however, we’d like to put aside questions of scope and work authorization to focus on the two issues that fostered the most debate in this symposium.

Congressional Priorities and Executive Discretion

Question 1: Should “consistency with congressional priorities” be the touchstone of legality?  In an earlier post, we argued that prosecutorial discretion is not limited to those instances in which its exercise advances congressional priorities clearly articulated in a statute. The contributions of others have only reinforced our belief that this view of discretion is the better one. If the Executive must trace its actions directly to priorities embodied in the statute, it will quickly run into the difficulty of interpreting congressional silence in a statute as complicated and multifaceted as the INA. Disagreements about the significance of congressional silence are at the heart of pretty much every published critique of the President’s actions that we’ve read since Thursday—by Peter Margulies, Peter Schuck, David Martin, David Rivkin, and Elizabeth Price Foley. 

We won’t repeat here why we think these arguments miss the mark, but we do want to highlight an odd implication of the focus on congressional priorities—one noted by both David Martin and Ahilan Arulanantham.  On a congressional priorities account, DACA itself appears unlawful.  After all, while “family reunification” is a familiar goal of the statute, one would be hard-pressed to identify places where the statute prioritizes immigration benefits on the basis of whether one arrived in the United States as a young child, or on the basis of whether one was culpable for one’s immigration violation.  The fact that these priorities are much more difficult to identify in the statute—but that David Martin and others think that DACA is more rather than less likely to be lawful than the new round of relief—highlights the fact that something other than congressional priorities is doing serious work.

Case-by-case versus Categorical Judgments

Question 2: Does administrative relief becomes legally problematic when it takes “categorical” rather than “individualized” form?  This question has sparked perhaps the most spirited debate during the symposium, with great contributions by (in order of appearance) David Sklansky, Gillian Metzger, Dave Martin, Zachary Price, and Ahilan Arulanantham.  In our view, part of what has divided commentators on this issue is a definitional disagreement: is an exercise of prosecutorial discretion “individualized” if the executive applies a set of rule-like criteria to an individual person?  Or is it “individualized” only if the decisionmaker makes an all-things-considered judgment that cannot be reduced to specific criteria spelled out in advance of the decision?  We are skeptical that Heckler v. Chaney or any other source of law on the subject requires that decisions be individualized in the latter fashion—though even on that score President Obama’s policies consistently have preserved an escape valve that authorizes officials to make just such an all-things-considered judgment. 

For now, however, we want to highlight a normative rather than a definitional divide between participants in this discussion that should occasion further reflection among scholars interested in how enforcement discretion operates. The disagreement over values might be characterized as a fight between accountability and equality on the one hand, and deterrence and legal compliance on the other.  As several contributors have noted, it might seem perverse for the law to discourage the use of rules in this realm of prosecutorial discretion: drawing clear categories for relief promotes accountability and furthers the age-old goal of ensuring that like cases be treated alike.  Yet other contributors have expressed concern that rules can come at a cost as well, because rules reduce uncertainty about who will be protected from enforcement.  By minimizing uncertainty, the worry goes, the President’s policy threatens to undermine deterrence and, ultimately, compliance with immigration law.

If this argument is correct, then there may be no avoiding a conflict between deeply held values about accountability, equality, and the rule of law. We’ll tackle this question more fully in future work, but at base we are skeptical that this tension is real rather than illusory.  To be sure, there are clearly cases in which uncertainty is a valuable strategy for promoting legal compliance.  That much flows from Becker’s seminar account the criminal law, and it is the reason why, for example, the IRS tries hard to keep its audit algorithms out of public hands.  But we are less sure of the value of these deterrence arguments in the context where a relief program is both temporary and retrospective. And to the extent one worries that the policy may be repeated in the future, thus creating incentives for illegal immigration, that is an issue of pre-commitment, not of vague standards being superior to clear rules.

Limiting Principles and Sources of Constraint

Our views on these two central questions—that congressional priorities offer a false promise of legalistic constraint and that discretion’s exercise can often lawfully be categorical and cabined within rule-like criteria—does not mean that we believe the Executive ought to be or is as a matter of fact truly unbound.  Implicit in our earlier work is the assumption that law does and should play a role in constraining the exercise of enforcement discretion by executive branch officials, and so we bear some responsibility for attempting to articulate a better limiting principle than the ones that have characterized the debate thus far, either normatively or descriptively. While the work of developing such a limiting principle will necessarily have to be left for later (and longer!) work that we are planning, we want to conclude the symposium with a few preliminary thoughts about where such principles are likely to be located.

As our earlier post implied, and as others like Bruce Ackerman and Chris Schroeder have made explicit, any attempt to craft limiting principles must come to terms with the reality of, and the value in, executive branch lawmaking in the modern administrative state.  It is pervasively the case that executive branch officials make myriad value judgments that cannot be traced back clearly to some congressional delegation, and so simplistic delegation-centric accounts are unlikely to be persuasive: such accounts run the twin risks of either invalidating broad swaths of executive action and inter-branch dialogue that are valuable, or turning delegation in a concept so fictionalized as to be of little value.

This need not mean that statutes are basically irrelevant and that Congress’s only means of constraining the President’s exercise of lawmaking authority are through expressly prohibiting executive action or curbing presidential efforts through the appropriations process.  In our earlier work on the President and Immigration Law, we emphasized the fact that both the sources and limits on executive authority flowed from an understanding of the historical trajectory of immigration law’s statutory scheme as a whole.

Without rehashing our earlier claims, we simply want to reiterate that the INA is an integrated scheme that the Executive Branch must enforce as a whole. It arose through a historical process by which Congress and other players, time and again, deliberately chose to empower executive branch officials to structure the immigration screening system in ways that are not reflected in specific provisions of the code.  The fact that there are currently 11 million unauthorized immigrants in America is no accident.  And it is not correct to say, as some have argued, that Congress intended for the President to deny residence and a place in our workforce to all immigrants who didn’t fit into one of the limited categories of admission or relief that are described in the statute.

In the long development of a Code as complex as the INA, we must assume that the various Congress involved understood that enforcement choices would have to be made, and that those choices would be informed by quintessential executive branch and law enforcement priorities, such as fairness, efficiency, and public safety. This is one of the takeaways of Chris Schroeder’s post, as well as of the Supreme Court’s analysis of the nature of federal power in Arizona v. United States. And the President’s announcement last Thursday embodies this approach.

Congress may share these law enforcement values either in the abstract or as applied to the particular facts facing the President who must enforce the law, but we think any congruence is a plus rather than a necessity in any coherent theory of separated powers in a presidential regime. As we have explained elsewhere, the historical trajectory and current complexity of the immigration code operates as a sort of de facto delegation, and the values served by deferred action (both on an ad hoc and categorical basis) are built into the operation of prosecutorial and enforcement discretion more generally. We see no way for the President to accomplish the objective of enforcing the statute as a whole without relying on his own value and policy judgments.

Of course, as we noted at the outset of the symposium, we are doubtful that legal (as opposed to political) tools will be available to make the trade-offs described above in ways that produce anything more than all-things-considered sorts of judgments. But as a descriptive matter, we think this difficulty may be beside the point. In practice, if the Executive has upset a statutory equilibrium, such as through the kind of action the President announced last week, the separation of powers line is for Congress to draw as a matter of political contestation, a point Chris Schroeder also makes. This represents a dynamic account of the negotiation between Congress and the President of the parameters of their respective authorities—an account apparent in the history of immigration law.

Both the OLC opinion and advocates defending the President’s actions in fact have turned to historical examples to buttress President Obama’s current actions. But in using these examples as legal precedents, advocates in particular have missed the significance of their dynamism. The Executive Branch has a history of testing the limits of its discretionary authorities to accomplish objectives that existing statutory frameworks do not advance (in previous work, we have highlighted Eisenhower’s use of the parole power to admit refugees and Truman’s unilateral negotiation of an agreement with Mexico to bring guest workers into the country). In some cases, Congress has reacted by curtailing executive power, such as with the narrowing of the parole power in 1980 to case-by-case judgments. In other cases it has ratified what the Executive has done, as it did by granting permanent resident status to Haitian and Cuban immigrants paroled into the United States during the refugee crises of the late 1970’s and early 1980’s. But whether Congress has embraced or rejected Executive action, it is through its responses that the separation of powers comes to be defined.

If we take the project of constraining executive discretion seriously, as we do, we should of course not be naive about the many veto gates impeding congressional action to curb executive abuses, and we are sensitive to the one-way ratchet problem Zach Price identifies, especially when it comes to giving too much weight to congressional acquiescence. We therefore think it remains incumbent on the Executive to self-limit. In that sense, regardless of the merits of the OLC opinion, it has performed a vital separation of powers function. In short, history, context, and the dynamic aspects of inter-branch negotiations are critical elements of any limiting principles account.  Fleshing these principles out requires much more work, but our provisional view is that this path is more promising than a focus on more wooden notions of delegation, or on the distinction between more rule-like and more standard-like approaches to the exercise of prosecutorial discretion.

We will continue to think through these difficult problems, with deep appreciation for the efforts made by everyone in this symposium, and by OLC, to do the same.

Adam Cox is Professor of Law at NYU School of Law and can be reached at Cristina Rodriguez is Leighton Homer Surbeck Professor of Law at Yale Law School and can be reached at

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