The President's Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law

Abstract

In 2012, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, and in 2014, he announced an expansion of DACA as well as a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Both programs would allow some noncitizens who may be subject to deportation (technically, “removal”) from the United States to apply for multi-year temporary reprieves. These programs have faced a combination of policy and legal challenges. This article, based on my 2015 Foulston Siefkin Lecture, does not address all of the issues posed by DACA and DAPA, but it elaborates on two points that appear very briefly in my book, Immigration Outside the Law (Oxford 2014). First, whether DACA and DAPA are consistent with federal immigration legislation is a question that can be persuasively answered only with reference to the operation of the entire federal immigration scheme, which is one of selective admissions, selective enforcement, and vast discretion in enforcement. In this scheme, the key question is not whether enforcement discretion is exercised, but rather who exercises it. Second and relatedly, the discretion in federal immigration enforcement is so vast and so central to the scheme’s operation that the President faces a dilemma: how to control discretionary enforcement in the field. Adherence to the rule of law requires that the President assert meaningful control over the exercise of prosecutorial discretion by ensuring that discretion is exercised in a uniform, predictable, and non-discriminatory manner. DACA and DAPA respond to this dilemma in two principal ways. First, they regularize grants of deferred action through an application process, followed by a formal process of discretionary adjudication that relies initially on categories and guidelines. Second, DACA and DAPA transfer discretionary authority away from the units within the Department of Homeland Security where rank-and-file employees have actively resisted and challenged prosecutorial discretion guidelines as well as these deferred action programs. In short, DACA and DAPA respond to the President’s dilemma in ways that are grounded not only in the federal legislative scheme but more fundamentally in the rule of law.

Keywords: immigration law, immigration enforcement, prosecutorial discretion, presidential power, separation of powers, rule of law, immigrants' rights, undocumented immigration