Friday, November 21, 2014

Executive Discretion and Congressional Priorities

Guest Blogger

Adam Cox & Cristina Rodriguez

For the Symposium on Administrative Reform of Immigration Law

As we noted last night, in the debate leading up to the President’s announcement of administrative immigration relief, most commentators acknowledged that his prosecutorial discretion was not unlimited—that somewhere a line would be crossed from permissible effectuation of enforcement priorities and to an unconstitutional failure to enforce the law.  Yet most commentators—especially proponents of the President using his discretion to provide relief to broad categories of unauthorized immigrants—have been reluctant to specify where that line might be.  We think this is because the line cannot be drawn with precision using conventional legal analysis.  Last night the debate changed with the OLC opinion’s decision to draw a sharp line.

               The OLC opinion is a fascinating and important legal document, and in our view it reflects a novel conception of the President’s enforcement authority.  The memo ties the President’s use of his prosecutorial discretion directly to “congressional priorities.”  Again and again, the memo emphasizes the importance of whether a discretionary decision is “consistent with . . . the priorities established by Congress” in the Immigration and Nationality Act.  Where the decision to grant relief tracks priorities reflected in the statute, such as keeping intact the families of citizens and lawful permanent residents, it falls within the zone of discretion. But where the relief cannot be linked to statutory provisions, the executive is constrained.  This is the reason OLC concluded that providing relief to the parents of DACA recipients would not be lawful.

               This approach has considerable appeal in some respects. By tying the exercise of discretion to an inference about congressional intent drawn directly from the INA, the President advances a cooperative conception of the separation of powers and answers critics who claim that he is making policy unmoored from the elaborate statutory scheme that occupies the field of immigration law.  While the approach doesn’t quite insist that the President’s actions be the product of express delegations of authority—the gold standard for a properly constrained executive doing its best to effectuate the law in a world of limited resources—it gets as close to that idea as possible given the statute that exists. In any case, the position departs from an alternative default position that also has some plausibility: arguing that the President’s actions have not been expressly prohibited by Congress.

               The appeal of this approach is that Congress, not the President, appears to make the tough value judgments.  The President simply extracts those underlying value judgments out of the statute through sophisticated legal analysis. The trouble, however, is that we are not sure how true to the actual practice of separation of powers and executive decision-making this congressionally driven approach is. Outside the immigration context, it would be strange to argue that the myriad discretionary decisions made by federal prosecutors and other law enforcement officials are motivated or constrained by a sense of the value judgments Congress has made when enacting the criminal law; to the contrary, prosecutors talk often of the fact that their job is to do justice, not scrutinize the criminal code for answers.

Over the long history of immigration law as formulated by Congress and the Executive together, our sense is that the same pattern has obtained. Numerous past Presidents’ exercise of discretionary immigration authority is difficult to describe as consistent with the priorities of the INA as it then existed. In some cases—as with Truman’s extension of the Bracero guest worker program in the absence of congressional authorization or Eisenhower’s early refugee policies—the executive actions seem closer to the opposite. 

Today, this approach confronts a practical, interpretive difficulty. The INA amounts to a massive code that incorporates an accretion of myriad amendments over six decades.  Its very structure leaves us skeptical that congressional priorities can be cleanly or coherently identified through a careful, lawyerly exercise of inter-textual fidelity.  And the effort to do so moves the argument over executive discretion onto a plane that we think is unlikely to be very fruitful.  Does the fact that the INA leaves out a number of ways to preserve family unity mean that additional efforts to protect families are inconsistent with the statute?  Or that Congress did not contemplate those additional strategies?  This level-of-generality problem is a standard one that arises in all statutory interpretation, and we hasten to say that the existence of the problem is not a reason to reject this approach to discretionary decision-making. But in the specific context of our modern INA, it is a reason that there may be little payoff from such an approach.  

Of course, we do think it permissible for the Executive to take the principle of family unity into account when deciding how to allocate its enforcement resources.  But not because (and not only if) the decision mirrors what the President determines to be congressional priorities. Instead, we think that the legitimacy of such a decision is the product of two factors: one a feature of our legal system generally, and one a distinctive feature of immigration law. 

For the system as a whole, as we indicated above, our belief is that prosecutorial discretion has long entailed the legal authority (and perhaps even the responsibility) of executive branch officials to make difficult value judgments about the exercise of the state’s coercive authority.  For immigration law in particular, our view is that the structure and history of immigration policy bolster this authority.  We will have more to say in future posts about why this is so.  But for now we’ll just emphasize that the history of the inter-branch interaction in immigration law consists not of the Executive attempting to mold its discretion to fit Congress’s objectives, but rather of the Executive testing the limits of legislation in ways that have prompted Congress to react, either to validate the Executive’s actions or to create a framework to channel executive action through a set of legislatively defined standards and structures of adjudication. This is the story of the rise of our asylum system and many other aspects of modern immigration law that we have told in other work.

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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