Prosecutorial Discretion, Part Three: The Immigration Debate and Some Concluding Thoughts

This is the third and last post in my series about prosecutorial discretion, which is the legal ability of the executive not to act. Part One discussed the nature and origins of criminal prosecutorial discretion in the pre-Constitution common law and the disputed origins of non-criminal nonenforcement discretion. Part Two laid out some of the crucial limits — constitutional and statutory — on inaction.

For Part Three, I will discuss briefly how the legal principles from the previous posts apply to one of today’s most controversial policy topics: immigration and the deferred-action program. I will then conclude with some thoughts on the law.

1. Example: Immigration Nonenforcement

In 2012, the Obama administration established a policy of non-deportation for certain individuals who had come to the United States as children. In the memorandum, then–Secretary of Homeland Security Janet Napolitano described her authority for the program as “the exercise of our prosecutorial discretion” and set out criteria for individuals whom the Department of Homeland Security would not target for immigration enforcement.

This policy led to the creation of a program called Deferred Action for Childhood Arrivals (DACA), in which an individual who meets the secretary’s stated criteria would not be the subject of immigration enforcement proceedings. After registering under DACA and applying for work authorization, the individual would also receive an official work authorization from DHS. (For simplicity, I will only discuss the deferred-action portion of the program, not the extension of work authorization.)

At the outset, it’s important to understand that DHS’s characterization of its authority for DACA as “prosecutorial discretion” is technically incorrect. Violations of immigration law are largely civil in nature, so “prosecutorial” discretion is irrelevant. DACA would not control in criminal matters, nor could it, since that’s the purview of the Department of Justice. Although the act of entering the country illegally (at least the first time) is a petty misdemeanor and illegal entry after deportation is a felony, deportation decisions (which are the action that is being deferred) are made civilly through immigration courts.

As a civil-enforcement matter, DHS’s decision not to enforce (at least not yet) therefore sits under the line of cases following Heckler v. Chaney (1985), which means that a court presumptively won’t review the agency’s failure to act unless the governing statute sets out criteria to guide the exercise of its discretion. Has the Immigration and Nationality Act (INA) set out such criteria?

At first blush, this looks like a tough question. The INA is long and complex, so courts have tended to find discretion for the immigration-enforcement agencies on a wide variety of issues. For a partial list, see pages 10–13 and accompanying footnotes of the CRS report on this subject. (The recent Supreme Court case of Arizona v. United States (2012) also makes sweeping statements about the breadth of discretion under the INA, but those statements are inconclusive because the Court is describing the reach of federal power over immigration, not just the executive branch’s power.)

But the text does provide guidance. Title 8, United States Code, Section 1225 appears to require an immigration officer to detain all illegal immigrants and initiate deportation. Section 1225(a)(1) says (all emphases added):

An alien present in the United States who has not been admitted, or who arrives in the United States . . . shall be deemed for purposes of this Act an applicant for admission.

Subparagraph (a)(3) says:

All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.

Subparagraph (b)(2)(A) says:

Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [deportation proceeding].

Read together, the repeated use of “shall” in these provisions appear to create a mandatory duty on the part of the immigration officer. This legal theory was accepted by the district court in Crane v. Napolitano (N.D. Tex. 2013) (although the court later dismissed the case for lack of subject-matter jurisdiction on a different issue).

This is unpleasant but persuasive and the loose ends tie up fairly easily. First, although the statute repeatedly uses “shall,” which is the legal term that almost always creates mandatory obligations, so did the statute in Heckler v. Chaney, which used what the Supreme Court ultimately called a “permissive” version of the word “shall.” So the statute’s use of the word “shall” is not conclusive, at least under Heckler.

Nevertheless, the INA sets out “guidelines” that constrain the exercise of prosecutorial discretion in the way that Heckler envisioned. Section 1225 sets out how and when the government “shall” perform screenings on arriving persons, as well as some criteria for admission. This section doesn’t micromanage the process, but it does set out the specific criteria identified above. There’s no ambiguity about the process. Under Heckler, this should be enough to create a reviewable duty on the part of the government.

Second, it’s clear that there are not enough government resources to enforce the law against all possible persons who might be in the United States illegally. But this doesn’t excuse the Executive from performing its duties under the statute, and has actually reduced the amount of discretion it has by creating the DACA program. Here’s how.

As I noted above, DACA requires applicants to submit evidence to DHS that shows they are here illegally. But Section 1225(b)(1)(A)(i) makes crystal clear that when an immigration officer concludes that a person is an illegal immigrant, that determination triggers another statutory duty: “The officer shall order the alien removed from the United States without further hearing or review.”

The unanticipated result: by encouraging the children of illegal immigrants to submit information to DHS showing that they are here illegally, DACA appears to be actually triggering its immigration officers’ statutory duty to initiate deportation proceedings.

Third, although DACA itself may be ultimately unreviewable, the program can still be inconsistent with the agency’s legal duties. Thus, even if DHS’s program is never overturned in court, the executive has an independent constitutional obligation to execute the laws faithfully.

Immigration law is a complicated subject, and I’ve tried to focus on the big issues. If you’d like to read more, the Congressional Research Service has written a report that covers the legal framework in some additional detail (although with a different conclusion). I also highly recommend the scholarly article by law professors Robert J. Delahunty and John Yoo.

2. Concluding Thoughts

I mentioned in Part Two that one of the inherent dangers of any sort of nonenforcement discretion is the opportunity for the Executive to undermine policies set by the Congress. This potential separation of powers is partly fixed by the Take Care Clause, which imposes a duty to follow the law.

But how can we determine whether the president is, in fact, taking appropriate care that the law be executed? After all, Congress likes to pass sweeping legislation without devoting federal resources to full enforcement, which allows the president to claim (truthfully) that he has inadequate resources, thus allowing virtually arbitrary nonenforcement. In effect, the result of Congress’s thirst for big-ticket legislation has steadily eroded whatever constitutional guarantees the Take Care Clause provides.

These legal duties have not been clearly defined by the courts, but I think there are a few principles that capture its substance. The first is congruence. In general, nonenforcement decisions cannot be used to neglect important parts of legislated policy. If the President were to direct the IRS to cease and desist collecting individual income taxes and focus its resources entirely on collecting (and enforcing) corporate income tax laws, for instance, that decision would significantly alter Congress’s tax policy, thus violating the Take Care Clause. The same would be true of a decision to stop enforcing certain federal criminal laws (as distinguished from refusing to charge in a particular case).

Second, nonenforcement decisions that are broader than a single enforcement decision (such as a criminal case) should be announced publicly. The executive should fully publicize the decision, the scope of the decision, its legal authority for nonenforcement, the policy reasons for it, and whether nonenforcement will be prospective. This enables accountability and provides crucial feedback to Congress about practical issues that may require legislative correction. Public availability of this information also permits parties to evaluate the fairness of the decision.

Third, non-criminal nonenforcement decisions often depend on complex statutory interpretation questions involving the extent (if any) of an enforcement mandate. Congress could do a much better job of setting out criteria to guide nonenforcement decisions, and when it intends to grant discretion, to say so. Less discretion is not necessarily better; indeed, in many situations less would be worse. But Congress would do well to find ways to ensure that the president actually does the job that the Constitution requires.

This ends my series on prosecutorial discretion. In Part One I talked about the disputed origins of criminal prosecutorial discretion and its noncriminal doppelganger. In Part Two, I identified the limits of prosecutorial discretion. In this part, I concluded by applying these principles to the contemporary topic of immigration nonenforcement. I suspect we will continue to see disagreement among the courts generally, and within the Supreme Court specifically, about this issue. I hope it has been interesting and illuminating.