Thursday, November 20, 2014

What it is not: Dispelling the myths of the new DHS immigration initiative

Marty Lederman

[For the Symposium on Administrative Reform of Immigration Law]

Rarely has the legal basis for an important government action been so misunderstood and mischaracterized.  In the coming days, Balkinization's symposium devoted to this subject will include posts from several scholars who are much more familiar than I with the particularities of the immigration statutes at issue.  For starters, however, I thought it might be useful, and important, to dispel some of the more commonly heard myths about the DHS enforcement priorities and “deferred action” policies that the President just announced.  (See also Walter Dellinger's take here.)

1.  It’s not “unilateral” executive action.  Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion.   See especially pages 4-5 of the opinion of the Office of Legal Counsel.  And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).  On a first read, OLC’s analysis of the scope of DHS’s statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited.  Whether or not OLC is correct in all of the particulars of its analysis, however—a question that, as mentioned above, I’ll leave to others who have greater expertise than I do—the important point is this:  What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.

2.  It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority.  Indeed, it’s not an exercise of constitutional ”executive power” at all:  The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.  (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is “rooted” in the President’s constitutional duty to take care that the law is faithfully executed:  The point of invoking the “Take Care” Clause, however, is that implementing such enforcement priority decisions is “faithful” to the laws Congress has enacted.)

3.  It does not “cut out Congress”—indeed, it relies upon statutory authority.  Nor does it contradict what Congress has prescribed.  Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.  Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program):  Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32) and because it would not be analogous to deferred action programs that Congress has implicitly approved in the past (pp. 32-33).

4.  As that same OLC analysis demonstrates, the new deferred action policy is not premised on a theory of unlimited enforcement discretion—to the contrary.  Moreover, it is not unprecedented.  Conferral of “deferred action” status is a longstanding and regular feature of the immigration removal system that has been acknowledged by the other two branches (p.13), and Congress has never acted to disapprove or limit it; indeed, Congress has enacted laws that appear to have acquiesced in the practice, and OLC makes a strong case that the legislature has in some instances actually endorsed it (pp. 18-20, 23-24).

5.  It is not an "amnesty," nor does it afford anyone a license to violate any law.  That is to say, it is not the exercise of a “dispensation” power that the President does not have.  And it does not give the covered aliens any status as lawful immigrants, or provide a means of them obtaining citizenship or permanent resident status.

6.  The oft-invoked “What if the next President did not enforce his own set of ‘disfavored’ laws?” scenarios are not analogous--nor does the deferred action initiative create a precedent for any and all such nonenforcement hypotheticals.  [UPDATED for clarification.]  What if the next President were to announce that he or she were not going to prioritize clean-air enforcement, or prosecution of estate-tax evaders?  Doesn't the deferred action policy sanction such future executive "lawlessness"?   Three points in response to such hypos:  To begin with, the rationale of the OLC opinion might actually preclude, rather than authorize, many such hypothetical future presidential policies:  "[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences," OLC writes.  "In other words, an agency's enforcement discretion should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering."  Some of the "future President" hypos, that is to say, might be more like the DHS proposal to grant deferred action status to the parents of DACA aliens, which OLC concluded would not be lawful.  Second, even in such hypothetical cases involving wholesale decisions not to prosecute violations of criminal laws, the executive's announcement would not give companies a free pass to pollute, or taxpayers a license to withhold taxes.  A general nonenforcement policy in those contexts would leave the violators culpable, and subject to subsequent punishment, for the actions they undertook during the period of the executive’s nonenforcement policy:  Their potential fines would accrue every day, and they would remain in danger of being convicted as criminal malefactors.  Here, by contrast, there’s no duty for the aliens in question to leave the U.S., let alone any criminal conduct that is being ignored.  Finally, and most importantly, nothing the President and Secretary have announced tonight would give any aliens an immunity from culpability from, or a defense to, any unlawful conduct, or a legal “green light” to violate the law.  (Nor will this initiative increase the odds that future Republican administrations would implement their own enforcement priorities, since they already do so:  For example, in recent decades, when the DOJ Civil Rights Division has been in Republican control it has prosecuted very different types of race discrimination cases than it has under Democratic administrations.) 

7.  The new policy will not result in “underenforcement” of the immigration laws or constitute any other “abdication of the duties assigned to the agency” (OLC Opinion at 7); nor is it akin to a Nixonesque “impoundment” of funds.  The OLC opinion explains that DHS will likely spend the same amount of its appropriated funds on removal actions, and thus the deferred action policy (which covers only about one in every 30 undocumented aliens in the country) will almost certainly not even affect the total number of aliens the agency removes from the U.S.—what it will do, instead, is merely to adjust, in relatively small measure, which particular aliens are removed.

8.  The policy will not even guarantee aliens in deferred action status that they won’t be removed.  For one thing, DHS could revoke its policy—tomorrow, or next year, or in the next Administration—and at that point it could start removing the very same aliens who are covered by this initiative.  Moreover, even in the much more likely case that DHS does not change its new policy, that policy authorizes Immigration and Customs Enforcement Field Office Directors to order the removal of any covered alien if it would serve “an important federal interest.”

9.  It does not accomplish what the President has asked Congress to do, and what can only be done by enacting a new statute.   Again, it is not an “amnesty,” and does not confer any permanent status on any group of aliens, let alone afford them a legal entitlement to remain in the United States.  That remains something that requires legislative action . . . and that the President therefore continues to implore Congress to do.

10.  The new policy will not “deter bipartisan cooperation,” or put a crimp in any statutory reform efforts that might become law.   Congress can enact a bill tomorrow if it wishes—the Senate has already passed a bill that awaits action by the House, and the Executive’s initiative this evening will not prevent Republicans from discussing or proposing alternatives, especially after they control both houses of Congress next year.

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