President Obama has vowed to take executive action on immigration reform and the big debate, right now, is over how far he can go. The left has confidently asserted that Obama has wide-ranging authority—to defer deportations of undocumented workers and grant them work authorizations. The reason? Because, they say, the president has lots of leeway over how to enforce the laws. It’s called “prosecutorial discretion” and they say it’s no different from what local authorities do every day.
“For Mr. Obama to use the tools at hand to focus on high-priority targets — felons, violent criminals, public-safety and national-security threats — and to let many others alone would be a rational and entirely lawful exercise of discretion,” the New York Times editorial board wrote Sunday. “It is the kind of thing prosecutors, police and other law-enforcement and regulatory agencies do every day.”
President Obama has talked about his authority in similar terms, which suggests that he and his advisors are thinking along the same lines. But the concept of prosecutorial discretion is a lot more complicated—and its implications a lot less clear—than Obama and his allies make it sound. The president’s power to set priorities over law enforcement has real limits. The further he stretches his authority, the louder conservatives will yell about his lawlessness, and the greater chance that they’re correct.
The premise of prosecutorial discretion is pretty straightforward: The federal government never has enough resources to enforce every law. Think about taxes: The IRS couldn’t possibly scrutinize every single tax filing to make sure every individual has paid the proper amount in taxes. The agency has to decide where to focus its enforcement efforts—who to audit, for example, and how extensively to audit them. It’s a lot like local police deciding whether to pull over drivers who are going 66 in a 65 mph zone. Local prosecutors do the same thing when they decide not to pursue minor infractions, or sign off on plea bargains, so they can focus their efforts on locking up dangerous criminals. The federal government does this all the time as well. Laws typically give agencies that discretion, and that discretion can go pretty far. In implementing Dodd-Frank, for example, financial regulatory agencies have missed numerous deadlines for finalizing different rules. There simply was no way, given the resources Congress allotted them, to complete the rules in time. So, they prioritized accordingly.
But prosecutorial discretion also has limits, for the very simple and important reason that Congress—i.e., the legislative branch—still has sole authority to write laws. There are very rare exceptions to this: The president may have extra authority in when congressional dysfunction makes it impossible for the federal government to deal with a crisis. (Failing to lift the debt ceiling might have qualified under this criteria.) But you can’t really argue that applies to the case of immigration. Gridlock has prevented Congress from passing laws that address our broken system, but the country doesn’t face some kind of existential crisis because of it. Nor is it completely a function of congressional dysfunction. As Ross Douthat, a conservative columnist at the New York Times, explained last week, the Obama administration chose not to make immigration reform a priority when it controlled both houses of Congress. That might have been the right decision, given other priorities, but it’s a reminder that Congress doesn’t bear sole responsibility for failing to change immigration laws.
Another limit on prosecutorial discretion has to do with the way presidents use it—on a case-by-case basis versus on a whole category of people. Traditionally, prosecutorial discretion has been used in individual cases. Consider the previous examples of a motorist driving 66 miles per hour on a 65 mph road or a prosecutor cutting a plea bargain with a defendant. In each case, the law enforcement official makes their decision independently. There is no official police policy to allow drivers to go 1 mph over the speed limit or to offer plea deals. The department may issue rules advising their officials to be lenient with slight speeding, for instance, but the officers are not prohibited from making their own decisions. People driving 1 mph over the speed limit are still at risk of receiving a speeding ticket.
The Administration seemingly understands this distinction well, because it has tried to describe its actions as leaving final enforcement decisions in the hands of individual officers. One example is the now-famous “Morton Memo.” That’s a document that John Morton, the director of U.S. Immigration and Customs Enforcement, issued in 2011. It gave ICE new priorities for which people to deport. The Morton Memo did not actually exempt anyone from enforcement. Immigration officers were still free to make a determination of deportation in each individual case—i.e., they could still deport somebody who was low on Morton’s priority list. In other words, it provided guidelines for using case-by-case prosecutorial discretion—and no one argued that it was illegal.
In 2012, the administration announced the Deferred Action for Childhood Arrivals (DACA) program, which gives deferred status to undocumented immigrants under the age of 30 who were brought into the United States as children before 2007. This program is widely believed to be the prototype for whatever Obama might do this fall. When the administration announced DACA, then-homeland security chief Janet Napolitano was careful to say that the Department of Homeland Security would continue to make case-by-case determinations for each applicant.
You can bet the Administration will make similar statements whenever Obama announces his new initiative. But the claim just isn’t very credible. Whenever President Obama talks about this issue, he speaks in a categorical sense. “These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag,” Obama said when he announced DACA. “They are Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents—sometimes even as infants—and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.”
If this is not a case of categorical discretion, what exactly would be? You always have to make determinations on an individual level to judge whether the person qualifies for a certain program. But the eligibility criteria are set across-the-board. That certainly sounds like a categorical use of prosecutorial discretion. And the fact that the administration has tried to spin the program as a case-by-case use of prosecutorial discretion demonstrates that they are sensitive to the different legal ramifications associated with categorical policy.
(It’s noteworthy that, when asked by the Washington Post’s Greg Sargent about this very question last week, the acting DHS Attorney General during that period sidestepped the issue—twice.)
If the federal government has to prioritize its resources, why should we care if the president decides to make enforcement decisions for broad categories of people? A big reason is deterrence. Zachary Price, a visiting assistant professor at the University of California Hastings College of the Law, lays out this argument nicely in a recent piece for the Vanderbilt Law Review. Even if the federal government lacks resources to enforce a law on everybody, he points out, mere threat of enforcement can get people to comply. But once you’ve waived away enforcement for a group of people, they won’t bother to obey. Eliminating the deterrent, Price argues, undermines the law—and thus crosses the line from prosecutorial discretion to “law making.”
That’s a pretty powerful argument for why something like DACA exceeds the boundaries of presidential authority—and what separates it from the Morton Memo. Under DACA, thousands of undocumented immigrants have been granted deferred status and no longer fear deportation, at least temporarily. The Morton Memo, on the other hand, never removed the threat of deportation, because officers could still make judgments on a case-by-case basis. That’s why, under Price’s argument, the Morton Memo is a legal use of prosecutorial discretion and DACA is not.
But that’s not the end of the story. This analysis elides over a key point: Congress does not create laws just to discourage certain actions. It also has many other priorities in mind. The president can implement legislation in a way that downplays the importance of deterrence while promoting other values in a way that stays faithful to the statute. “Among these [institutional design choices the president must make] are how to respect “rule of law” values in the context of prosecutorial discretion,” Hiroshi Motomura, a law professor at UCLA, writes in an email, “and those values include consistency, predictability, and nondiscrimination (which can be viewed as forms of consistency and predictability in this context). This requires a balancing of non–deterrence against these other values as part of prosecutorial discretion in a way that is faithful.” In other words, giving up on some deterrence may not be an example of “law-making,” which the president clearly can’t do. It might be an example of balancing the law’s many different missions—and other constitutional duties—which is something the president clearly can do.
For instance, DACA did not just eliminate a deterrent for staying in the U.S. illegally. It also made the immigration system more predictable, consistent and fair—all priorities that Congress generally cares about in crafting legislation. “A program like DACA has many positive consequences that offset any net non–deterrence that result,” says Motomura, who authored a letter to President Obama in 2012 outlining the legal rationale behind DACA. “If the [past] guidelines had been administered fairly, uniformity, predictably, and without reasonable concerns about racial and ethnic bias on the part of various actors with enforcement roles, DACA might not have been necessary. This is a key reason for DACA (and broader versions of such a program) that Price ignores.” There’s no doubt that DACA eliminates a deterrent, particularly by granting work authorizations to these undocumented immigrants. But that is not enough to prove its illegality.
Based on reports from the Washington Post, the president is now considering expanding DACA for a much larger class of undocumented immigrants, possibly as many as five million of them. It’s important to remember that these are just reports. Nothing has been confirmed or announced. But if the president does go in this direction, he will likely use a similar legal justification to that used for DACA. Whether the positive consequences of this new executive action exceed the negatives of undermining the deterrence built into the law is a subjective question. But liberals should remember that efficiently prioritizing resources is not a sufficient legal justification for prosecutorial discretion.
“[T]he test is whether the exercise of discretion relates to faithful execution of the law, not whether the exercise of discretion relates to prioritization of limited enforcement resources,” David Leopold, an immigration lawyer in Cleveland at David Leopold and Associates, wrote in an email. “Prioritization of resources may be an example of faithful execution, but [it is] not the test of legitimacy…as a policy choice.”
There is no clear line here. What are Congress’s priorities? And how do we compare them to one another? Conservatives and liberals will likely value these priorities differently and thus come to different conclusions about the legality of Obama’s action. But this is precisely what gives an executive so much power in implementing laws. There are other constraints—political ones certainly—that Obama must consider. But so long as the president is faithfully implementing the law in a manner that arguably lives up to Congress’s priorities, he is on firm legal ground.
Danny Vinik is a staff writer at The New Republic.