L ast night, President Obama announced that for the next three years his administration will halt deportations of as many as 5 million illegal immigrants and will instead give them work authorization through the Department of Homeland Security.
Although President Obama’s first speech of the 2016 campaign season didn’t go into many precise details, the administration released an Office of Legal Counsel (OLC) memo outlining the administration’s legal theory, which spends most of its time arguing that the program is a legitimate exercise of “prosecutorial discretion.” The administration frames the program as an exercise of the executive branch’s ability to make decisions about enforcement priorities. But what President Obama proposed last night goes beyond that relatively modest legal principle.
Historically speaking, prosecutorial discretion arose in criminal law and predates the Constitution by several hundred years. Under the common-law practice of nolle prosequi, the English Crown could terminate — or simply not initiate — a criminal prosecution. No court would second-guess that decision. That practice was recognized and has continued largely without modification in the American system.
Because of its similarity to other aspects of government enforcement decisions, courts have taken a similar approach in the civil and administrative context, which is where immigration law generally sits. In 1985, Justice William H. Rehnquist noted in Heckler v. Chaney that courts had traditionally been unwilling to condemn government inaction on the grounds of institutional incompetence. In his view:
The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.
Based on these considerations, the executive can delay and prioritize enforcement without triggering judicial review, but it can’t alter the law. This is a crucial distinction: The Constitution gives legislative power to Congress alone, so only Congress can change the law. Even the president’s regulatory authority is derived from (and cannot exceed) Congress’s legislative delegations. Thus, the mere act of overlooking an offense cannot declare illegality to be legal, nor can it result in any sort of legally effective amnesty (unlike a pardon). In short, prosecutorial discretion is a practical doctrine that has purely practical effects. All that prosecutorial discretion does is temporarily spare its beneficiary from the law’s practical consequences.
Had President Obama announced criteria for delaying certain deportations on a case-by-case basis, he would have been operating on the same legal terra firma as have other administrations. That doesn’t mean delays are always intelligent or responsible, of course, just that intentionally delaying them won’t necessarily violate the law. And if this were all, it would not be a significant legal issue.
As described last night, though, the new “deferred action” program goes well beyond prioritization and timing. In fact, it undercuts the substance of the Immigration and Naturalization Act itself (in addition to rewarding the coyotes and traffickers who prey on illegal immigrants).
First, and quite astonishingly, the president actually claimed to be changing the law with this program. Although we don’t usually expect presidential campaign speeches to involve great legal precision, the president actually promised that his new program would have substantive legal effect. See here (emphasis added):
Now here’s the thing: We expect people who live in this country to play by the rules. We expect that those who cut the line will not be unfairly rewarded. So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes — you’ll be able to apply to stay in this country temporarily, without fear of deportation. You can come out of the shadows and get right with the law. . . . It does not grant citizenship, or the right to stay here permanently, or offer the same benefits that citizens receive — only Congress can do that. All we’re saying is we’re not going to deport you.
Note the quasi-contractual language followed by a promise to “get right with the law.” In every meaningful sense, these words indicate that the program will actually change the legal rights and responsibilities of the illegal immigrants in exchange for certain promises. The OLC memo supports that interpretation, stating that granting deferred action under this new “deferred action” program would actually “suspend” the period that counts against an illegal immigrant who is seeking lawful status. That means that OLC thinks that the administration can use a program supposedly based on its own discretionary inaction to create a substantive legal effect that suspends part of a valid statute.
But out of legal and political necessity, the OLC memo can’t say that, so it takes both sides of the argument for a spin. In the same paragraph, OLC denies that the deferral program would have a substantive effect (citations omitted):
As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time.
On the one hand, the program gets applicants “right with the law.” On the other hand, the effect is merely temporary and reversible. I leave it to you to figure out which promise the administration intends to keep.
Second, the program would categorically halt deportations of eligible applicants notwithstanding the statutory criteria. As I’ve written before, the INA says that when an immigration officer discovers tha a person has no lawful status, enforcement proceedings must begin. The administration, by contrast, is guaranteeing that eligible applicants will be immune to enforcement for at least three years, even if every immigration officer in the country knows that the person has no legal status. Presumably any officer who decided to apply the policy in the old way would be disciplined. The new policy is a systematic, outright refusal to do what the law requires, not merely a practical decision to forgo action in a particular case or focus attention elsewhere.
The OLC memo asserts several unpersuasive sources of authority. There’s a standard “institutional acquiescence” argument: The executive branch has used deferred action a lot in this area, and Congress hasn’t stopped it from doing deferred action, so Congress must have authorized deferred action. But if we’re operating at that rhetorical level, then it makes more sense to say that Congress has authorized deferred action before, has not authorized deferred action this time, and so is now denying the president the authority to do deferred action. After all, why should Congress have to pass a law to stop the president from doing something he wasn’t authorized to do in the first place?
To its credit, the OLC memo disclaims the absurd argument that it can extend “deferred action” to whomever it wants whenever it wants. (At least they believe that there are limits!) In its place, however, a much more malleable test is proposed in the memo: whether the program is “consonant” with congressional policy as expressed in the statute. Well, that’s not really how this whole Constitution thing works. The executive can make whatever abstract policies it wants until the cows come home. But without authority from statute or Constitution, the executive can’t act.
Because Congress has thus far refused to say “yes,” the administration has resorted to cobbling together statutory authority from the INA’s emanations and penumbras. However, as the president himself admitted only a year ago:
My job in the executive branch is supposed to be to carry out the laws that are passed. Congress has said “here is the law” when it comes to those who are undocumented, and they’ve allocated a whole bunch of money for enforcement. And, what I have been able to do is to make a legal argument that I think is absolutely right, which is that given the resources that we have, we can’t do everything that Congress has asked us to do. What we can do is then carve out the DREAM Act folks, saying young people who have basically grown up here are Americans that we should welcome. . . . But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option.
Third, the sheer magnitude of the president’s plan eviscerates its pretensions to be something other than an abdication of statutory and constitutional responsibilities. Let’s be clear: The administration has now announced a halt to deportations that could apply to nearly half of the estimated 11 million illegal immigrants in the United States today. This move obviously undercuts Congress’s policy of requiring enforcement against individuals who have no lawful status.
The administration’s position here is illegal and unconstitutional. But as important as these illegalities are, don’t be deceived — the new program is pure cynicism. President Obama gave the game away by scheduling his smug prime-time address right before the airing of the Latin Grammy Awards and by beginning the speech with a diatribe against House Republicans. If he had really cared so much about this issue, he would have announced the “deferred action” program long ago.
The simple fact is this: The president no longer wants a permanent solution, because if he did, he’d have to share credit with the Republican Congress. No, he wants a temporary solution for three years, just long enough to elect a new president. He wants this policy to depend on who controls the White House in 2017, because he wants Hispanic voters to turn out for Democrats.
The whole thing has more than a whiff of Machiavelli about it. The program that the administration announced for the “DREAMers,” Deferred Action for Childhood Arrivals (DACA), applies only to people who prove to DHS that they have no lawful right to be in the country. But that means that DHS now has veritable lists of people who have admitted — directly to the government — that they have no legal defense against deportation. They remain in the good graces of DHS only so long as DACA remains in place. Statements in the OLC memo suggest that this process would be used in the new program as well.
And so, thanks to the president’s lawlessness, we can expect the Democrats to make the following cynical argument for the next two years: Vote Democrat or your friends and family will be deported. Apparently “Yes, we can” really meant “Say yes, or else.”
— Jonathan Keim is counsel for the Judicial Crisis Network and a former prosecutor.