Sunday, November 23, 2014

Prosecutorial Discretion Through the Looking Glass

Guest Blogger

David Alan Sklansky

For the Symposium on Administrative Reform of Immigration Law

            For someone like me—a former prosecutor who now teaches and writes about criminal procedure—there is a Through the Looking Glass quality to much of the furor over President Obama’s new immigration enforcement policies.  For several decades concerns have been raised that American prosecutors exercise lawless authority, in large part because of their nearly unbridled discretion over the filing of criminal charges.  Prosecutors have resisted, fiercely and successfully, virtually every effort to limit the range of their discretion or to require them to explain, to defend, or to justify their charging decisions.  Their resistance has been successful in part because the courts have treated enforcement decisions not just as unamenable to judicial review but as a matter firmly committed under our scheme of government to the Executive Branch.  It is this extreme deference by the courts to prosecutorial discretion—deference that strikes many scholars of criminal procedure as excessive—that has served as the primary template for broad judicial deference to other forms of executive enforcement discretion, including decisions about deportation.

            From that standpoint, there are two things about the immigration enforcement policies that are profoundly unremarkable.  The first is that the Executive Branch is prioritizing which undocumented immigrants it will seek to deport.  It has to do that, since there are about 11 million undocumented immigrants in the country and Congress has provided funding that will allow somewhere around only 400,000 removal actions each year.  The second unremarkable thing is the particular enforcement priorities the Administration has chosen, none of which seem to have drawn any significant criticism.  Those priorities do not include, needless to say, immigrants without criminal records who are the parents of U.S. citizens or lawful permanent residents and who have lived in this country continuously since at least 2009.

            What has drawn criticism, of course, is the announcement of a policy not to deport most people in that group, at least not for the time being, coupled with a decision to give them work permits.  I don’t feel particularly qualified to opine about the legality of the work permits, except to note—as has the Administration—that there is a longstanding practice of giving work permits to immigrants granted “deferred action,” a practice to which Congress and the courts seem, at a minimum, to have acquiesced.  But to someone who thinks more about prosecutors than about immigration agents, it’s weird to see to see the President criticized as “lawless” for announcing a formal policy rather than continuing to forego deportation on a entirely ad hoc, decentralized, case-by-case basis, as everyone seems to agree he could have done.  It’s in large part the ad hoc, decentralized nature of prosecutorial discretion that has seemed to many people, for quite a long time, to allow prosecutorial power to be exercised so arbitrarily.

            What makes the talk of lawlessness in connection with the new immigration policies especially bizarre is that (a) the President took the unusual step of releasing an assessment of those policies by the Office of Legal Counsel, (b) OLC’s assessment took seriously not just the judicially enforceable limits on executive discretion, which are minimal, but the nonjusticiable implications of the President’s constitutional obligation to “take Care that the Laws be faithfully executed,” and (c) OLC wound up interpreting that language to impose significant restrictions on enforcement discretion—so significant that they ruled out some of what the President had wanted to do, and what it seems to me he could very plausibly have claimed authority to do.  Charging guidelines in criminal procedure are rarely if ever announced and defended in so public a manner, with such significant self-imposed limits.  Maybe they shouldn’t be.  But when compared with enforcement discretion in criminal procedure, the new immigration policies hardly look lawless.

            It’s entirely sensible to think not just about the substance of the new immigration enforcement policies but also about the precedent set by the way in which the President has put them into place.  The President’s critics are right about that.  They’re wrong, though, to suggest that the precedent created here will allow future Administrations to decline to enforce any laws they do not like.  The President has asserted the authority only to exercise his immigration enforcement discretion—a kind and an amount of discretion that Congress has left him no choice but to exercise in one way or another—through nationwide policies, publicly announced and publicly defended, rather than through ad hoc decisions made around the country behind closed doors.  Moreover, OLC’s memorandum concludes that the new deferred prosecution guidelines are permissible only because (a) they rely on factors peculiarly within the expertise of those charged with enforcing the immigration laws, (b) they are consonant with the policies and commitments established by Congress, (c) they do not abdicate or attempt to rewrite the President’s statutory responsibilities, and (d) they leave open the possibility of individualized, case-by-case decisions, if particular immigrants within the general class protected by the new policy nonetheless merit deportation.

            Arguably those principles would allow the step ruled out by OLC—deferred action for parents of DACA beneficiaries.  Regardless, though, the precedent they create for future Presidents is circumscribed.

David Alan Sklansky is Professor of Law at Stanford Law School and can be reached at


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