Greg Sargent of the Washington Post interviews John Sandweg, who served as acting general counsel at the Department of Homeland Security from 2012-2013, a period during which the Obama administration established its Deferred Action for Childhood Arrivals (DACA) program. The interview is revealing. According to Sandweg, granting deferred action to a broad class of unauthorized immigrants is all about making the best use of limited enforcement resources. When Sargents asks Sandweg if moving from an internal memo concerning how enforcement resources will be deployed to a public announcement makes some difference, Sandweg insists that it makes no difference at all. Moreover, he claims that granting work authorization to unauthorized immigrants is an afterthought:
Longstanding law already allows for individuals who are granted deferred action to gain work authorization. This is not central to how and why a policy like DACA makes sense. We were looking for a tool to help our officers and agents to better do their jobs. The easiest way to effectuate that was granting deferred action. There was a longstanding, preexisting regulation that governs who gets work authorization; deferred action recipients were included in that regulation — a decision that was made long before this administration.
Sargent then asks David Leopold of the American Immigration Lawyers Association to expand on Sandweg’s analysis, and Leopold adds the following on what DACA actually grants unauthorized immigrants:
While it is true that DACA applies to categories, it does not cross over into anything even remotely equivalent to granting any category any kind of new protection under rewritten law, because it does not create any new right or legal immigration status. The government retains its authority to unilaterally revoke DACA, either categorically or individually, at any time and for any reason, subjecting an undocumented immigrant to removal.
It is true that there is no bright line test delineating the parameters of the President’s authority to grant Deferred Action. Perhaps one way to think about this is to ask whether the exercise of prosecutorial discretion in question — whether categorical or not — can reasonably be seen as legitimate prioritization of limited law enforcement resources. If so, it arguably falls well within President’s legal authority. This would include individual as well as categorical grants of deferred action, such as DACA. As the Supreme Court recognized in Arizona vs. U.S., some “discretionary decisions involve policy choices.” [Emphasis added]
When asked about work authorization, Leopold writes:
Though many argue that DACA grants its beneficiaries work status, in fact, the regulation that grants work status to undocumented immigrants who have been granted deferred action predates DACA and applies to many other categories of people granted deferred action. The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization. It requires them to demonstrate economic necessity. That applied to anyone granted deferred action either individually or categorically.
And so the fact that deferred action is now being applied to millions of individuals is immaterial, as no new right or legal immigration status is being conferred. The fact that work authorization makes an enormous material difference in the lives of immigrants means nothing, as these authorizations are being granted on an entirely contingent basis. In the world of Sandweg and Leopold, political considerations are irrelevant. The fact that many immigrants will interpret deferred action as an indication that they can deepen their ties in the United States is irrelevant. Unauthorized immigrants granted work authorization will find new economic opportunities that might not have been available to them in the absence of their new (contingent) legal status, and the revocation of this new status will presumably cause considerable economic disruption. This means nothing. The practical, real-world consequences of giving immigrants safe harbor are ignored, as some future president can, in theory, reverse deferred action — Sandweg and Leopold aren’t asked to address the fact that revoking this new contingent status will be virtually impossible, and more difficult after two or three years of the new deferred action policy pass. Will unauthorized immigrants granted deferred action marry and reproduce? More of them will be thus become the relatives of U.S. citizens. Will they enter into economic relationships with U.S. citizens? More U.S. citizens will experience economic hardship, loosely defined, if they leave.
Sargent’s conversation brings to mind Texas Congressman Lamar Smith’s 2011 HALT Act, a bill that aimed to limit the executive branch’s prosecutorial discretion to prevent its abuse. Reading criticisms of the HALT Act from 2011, before DACA, makes for amusing, and depressing, reading, as many defenders of DACA and the new initiative to (effectively) legalize millions of unauthorized immigrants then claimed that Smith was imagining things. Consider the following from Marshall Fitz of the Center for American Progress:
Legislation to hinder the “temptations” of another branch of government is a bizarre concept, and the suggestion that the administration is “tempted” to legalize the undocumented population is disconnected from reality.
First, the president can’t “legalize” undocumented immigrants. The most he can do is delay their removal from the country for compelling reasons. Second, this administration has deported more immigrants than any administration in a generation. So there’s some cognitive dissonance when immigration restrictionists continue to claim that the Department of Homeland Security, or DHS, refuses to enforce the law and is pursuing a stealth amnesty agenda. More disturbing than the deluded rationale for this bill, however, are the legislation’s intended effects. If the HALT Act became law, it would eliminate the last few crumbs of compassion that remain in the immigration code.
The most obvious symptom of our broken immigration system is the fact that we have 11 million undocumented people who are living here and are working and integrated into our communities. The president has correctly said on numerous occasions that everyone bears some blame for this situation: the immigrants themselves, of course, but also the businesses and families that hire them and the government’s prior inability to regulate the border and worksites. But we can’t enforce our way to a solution. And as we try to do so, the human casualties pile up: The lives of hundreds of thousands of U.S. citizens, legal permanent residents, and undocumented immigrants have been destroyed by our inability to get this right.
In the meantime, one of the few saving graces to prevent even more harm and hardship to U.S. families is the existence of narrow categories of discretionary relief still available to DHS. For instance, when DHS determines that an undocumented immigrant has been here for more than 10 years, has been a person of good moral character, and their removal would cause “exceptional and extremely unusual hardship” to their U.S. citizen spouse, the immigration law authorizes the agency to cancel the removal of that person. The HALT Act would foreclose that and similarly narrow avenues for relief.
The authors and supporters of the HALT Act, however, are wedded to a fantasy that undocumented immigrants will up and leave the country if we make life harsh enough and treat immigrants and their families shabbily enough. This bill’s goal of scrubbing all discretionary relief out of the immigration system is mean spirited and counterproductive. Blinded by anti-immigrant zeal, their efforts to handcuff DHS will make us less safe. It will be harder for our agents to effectively prioritize the removal of gang members over hard-working mothers and children.
What exactly might a stealth amnesty agenda look like? If my goal were to push for a broad amnesty, and I found that there was intense congressional resistance to legislation designed to legalize the unauthorized population by statute, my stealth amnesty agenda might involve using the executive branch’s prosecutorial discretion in such a way as to make future efforts to remove large numbers of unauthorized immigrants extremely difficult by, for example, encouraging unauthorized immigrants to believe that remaining in the United States unlawfully is a viable option, as they will be granted work authorization that will make them full economic participants in American life (a privilege that aspiring immigrants around the world are desperate to gain). And by explicitly telling them that they will not, for a period of several years, be removed from the United States, particularly if they form strong family ties.
Fitz refers to “narrow categories of discretionary relief,” and he references the concept of “exceptional and extremely unusual hardship.” Is it meaningfully to describe avenues for discretionary relief as “narrow” if they apply to millions of individuals?
And is it indeed true that in the absence of DACA and measures like it that publicly announce that immigration laws will not be enforced by people who below to several expansive categories actually make it more difficult to prioritize the removal of gang members over hard-working mothers and children? This seems less than plausible, and I’d be curious to hear someone make a detailed case as to how the absence of such a public announcement (as opposed to an internal memo, which is likely to be interpreted differently by unauthorized immigrants themselves) has crippled immigration enforcement efforts.
After describing the HALT Act’s provisions, Fitz 2011 analysis continues to emphasize the narrowness of discretionary relief:
The narrow forms of relief that the HALT Act suspends are Congress’s recognition that in certain circumstances the equities of an individual case outweigh a rule of general applicability. Congress, in those narrowly defined instances, has authorized immigration authorities to evaluate the circumstances of a case and make a decision as to whether relief should be granted. Providing narrowly tailored exceptions to a general rule is an acknowledgment that rigid adherence to the rule may subvert other values and the interests of justice. This bill sacrifices those values at the altar of an ideological agenda. [Emphasis added]
Fitz then reiterates his argument that only by “providing deferred action to low-enforcement-priority individuals” can we have effective law enforcement. What I find confusing about this line of thinking is that the executive branch has not found it necessary to grant deferred action to low-enforcement-priority individuals with regards to drug trafficking, yet law enforcement agencies are nevertheless capable of prioritizing some investigations over others.
Regardless, it seems clear to me that Lamar Smith deserves credit for anticipating the transformation of deferred action from a tool of prosecutorial discretion to a tool designed to politically constrain future policymakers.
I’ll close with a passage from Josh Blackman, author of a new working paper on “Congressional Intransigence and Executive Power”:
Imagine if President Romney, relying on the same sort of power exercised by President Obama, had delayed the Affordable Care Act’s individual and employer mandates indefinitely, until there were enough votes to repeal it. Or if President Rand Paul decides not to enforce the corporate income tax against successful Fortune 500 companies, citing similar prosecutorial discretion relied on in DACA. Or if President Hillary Clinton decides to waive the requirement that welfare recipients participate in the workforce to receive benefits. Or if President Ted Cruz, in keeping with the President’s decision not to enforce controlled substance laws in two states, decides not to prosecute Texas businesses for violations of environmental laws. Or if President Elizabeth Warren decides that the government will no longer collect any interest on federally-guaranteed student loans, waiving any enforcement against defaulting debtors. Or if President Rick Perry determines that based his discretion under the naturalization powers, he can decide to halt all naturalization of people from certain Latin American countries. Or if President George W. Bush had instructed his Social Security Department to not collect a certain percentage of social security taxes, allowing people to deposit the funds directly into individual accounts. I could go on, but you get the picture. In the wrong hands, through the suspension of the laws, the Executive, emboldened by creative lawyers, can enact policies that could never be passed through the legislative process.
Suffice it to say, you can expect immigration activists of the very near future to campaign on the notion that because a future Republican president will strip unauthorized immigrants of their (contingent) protected status, all those who love immigrants must do everything in their power to prevent a GOP victory. There’s an extraordinary political logic at work: either you pass an amnesty through the legislative process, and swell the ranks of voters who owe their legal status to elected officials who believe that unauthorized immigrants should be granted a path to citizenship ahead of lawful aspiring immigrants who’ve chosen not to violate U.S. immigration laws, or you create a class of millions of people who depend on the success of political candidates who are committed to continuing their (contingent) protected status. Heads you win, tails you lose.
But of course politics never enters into the picture here. Not at all.