Monday, November 24, 2014

Must Enforcement Discretion be Exercised Case-by-Case?

Guest Blogger

Gillian Metzger

For the Symposium on Administrative Reform of Immigration Law

Along with others I believe the new immigration initiative is a constitutional exercise of DHS’s broad discretion over enforcement of the immigration statutes.  The Office of Legal Counsel opinion provides an impressive and careful assessment of the initiative’s legality.  OLC deserves credit both for making the opinion publicly available and undertaking to identify the metes and bounds of constitutional exercises of enforcement discretion.  

OLC identifies four principles as delimiting the permissible scope of enforcement discretion, two of which strike me as meriting special emphasis.  The first is the requirement that enforcement decisions must comport with statutory policies and cannot represent a surreptitious attempt by the executive branch to rewrite the statutes at issue.  The second—the constitutional bona fides of which I question—is that “a general policy of non-enforcement that forecloses case-by-case discretion poses special risks that the agency has exceeded the bounds of its enforcement discretion.”  (OLC Op. at 7).

A requirement that enforcement decisions must constitute good faith efforts to implement governing statutes (assuming those statutes are constitutional) strikes me as a no brainer.  This is the minimum constitutional demand imposed by the Take Care Clause’s requirement of faithful execution of the laws.  Whether such good faith efforts preclude invocation of presidential priorities when these priorities are compatible with underlying statutes is a harder question, as Adam Cox and Cristina Rodriguez suggest.  More generally, the principle that enforcement discretion must comport with statutory policy is not what’s in dispute.  Instead, it’s OLC’s application of this requirement — on the one hand, to uphold DHS’s proposal to grant deferred action status to parents of U.S. citizens or legal permanent residents, despite estimates that this may shield up to four million immigrants from deportation; and on the other, to conclude that it would be impermissible to grant deferred action status to parents of beneficiaries of the 2012 DACA program.

Still, the initiative’s statutory underpinnings are a critical feature of OLC’s analysis, and to my mind an important and appropriate one.  As Marty Lederman notes, rather than asserting inherent presidential power, OLC’s assessed DHS’s proposed actions entirely through the prism of delegated statutory authority.  That statutory focus will be a central factor in determining the opinion’s impact in future contexts.

OLC’s suggestion that exercises of enforcement discretion must preserve an opportunity for case-by-case determinations is much harder to justify.  OLC invokes lower court decisions in support of such a case-by-case requirement, but these decisions address a different issue, namely whether an agency’s adoption of a general enforcement policy should be deemed discretionary action that is presumptively exempt from judicial review under the Administrative Procedure Act.  The two questions are significantly distinct; it’s well-established that an agency decision can be judicially reviewable yet nonetheless constitute a legitimate exercise of discretion.  Moreover, at most these decisions identify case-by-case determinations as enforcement discretion’s paradigmatic form.  But that is a far cry from concluding that a purely general policy alone cannot qualify.

OLC also suggests that a case-by-case outlet is important to guard against the executive branch trumping statutory policy, however the basis for this connection isn’t obvious to me.  Nothing in the categorical nature of an enforcement policy entails that it will be more likely used to defeat statutory policies rather than enforce them.  Insofar as categorical policies make enforcement choices more transparent and better constrain low-level discretion, they actually represent an important mechanism for enforcing adherence to governing law.   To be sure, the Supreme Court has indicated that exercises of discretion in the immigration context may statutorily require “some level of individualized determination.”  (Reno v. Flores, 507 U.S. 292, 313 (1993)).  That would support OLC’s emphasis on opportunities for individualized determinations under the initiative, but doesn’t justify a broader principle that all constitutional exercises of prosecutorial discretion must have a case-by-case element.

Most importantly, an insistence on preserving case-by-case assessment ignores the constitutional values served by categorical enforcement policies.  Meaningful supervision over case-by-case removal decisions is hard.  Precluding prospective and categorical articulation of immigration enforcement priorities is thus tantamount to insisting that nonenforcement decisions must be made by lower-level officials.  Such a requirement stands fundamentally at odds with our constitutional structure, which I have argued embodies a duty to supervise exercises of delegated power.  On this view, by openly stating a generally applicable policy and instituting an administrative scheme and guidance to implement that policy, President Obama and Secretary Johnson were fulfilling their constitutional duty.  This positive constitutional case for categorical enforcement oversight deserves greater weight in assessing the initiative’s constitutionality.

Gillian Metzger is Stanley H. Fuld Professor of Law at Columbia Law School. You can reach her by e-mail at gillian.metzger at

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