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 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.