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 adambcox@nyu.edu. Cristina Rodriguez is Leighton Homer
Surbeck Professor of Law at Yale Law School and can be reached at
cristina.rodriguez@yale.edu.