The parties have finished their scheduled briefing in Texas v. United States, the case brought by several states challenging last November’s policy of refusing to enforce the immigration laws against several classes of persons, and additionally, granting some form of legal status and benefits. There’s a lot there, but I wanted to highlight one particular issue.

In an effort to take advantage of the broad nonenforcement discretion allowed to criminal law enforcement, the government is going all-in on its attempt to get courts to apply a similar level of deference to administrative and civil nonenforcement, in this case under the Immigration and Nationality Act. To this end, the government briefs repeatedly characterize administrative nonenforcement discretion as a “core” executive power, even though the Supreme Court implicitly rejected that view in Heckler v. Chaney (1985) by holding that a statute can impose a justiciable enforcement duty so long as it provides a standard for courts to apply. If Congress can take power away as Heckler says, then by definition it’s not “core” executive power. I don’t see this part of the government’s characterization going anywhere.

Pushed to its logical conclusion, though, the characterization would have sweeping implications. If administrative nonenforcement is a “core” executive power, and not just the result of congressional silence, then not only was Heckler wrongly decided, but the Administrative Procedure Act’s provision for judicial review of “agency action unlawfully withheld or unreasonably delayed” is unconstitutional. So, too, would be virtually every environmental statute that allows citizens to force agency action through lawsuits. Although this radical result would be a natural implication of the government’s invocation of “core” powers, the government is apparently unwilling to make the argument explicitly. I can’t say I blame them.