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 sklansky@stanford.edu.