The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law

Abstract

Stakes are high in the current debate about President Obama’s immigration reform initiative, Deferred Action for Parents of Americans (DAPA). Given the gridlock in Congress, it is tempting to read the Immigration and Nationality Act (INA) as authorizing work authorization and a reprieve from removal for undocumented migrants. Unfortunately, statutes, like facts, are stubborn things. DAPA is sound policy, but it is inconsistent with core policies in U.S. immigration law.

The INA is a comprehensive framework that both enables legal immigration and deters unlawful migration. To accomplish the latter, its provisions discourage unlawful entry, presence, and work, while its enumerated categories of legal status block unlawful entrants’ acquisition of status through post-entry U.S. citizen children. Moreover, Congress for over a quarter-century has sought to limit discretion in the executive branch that undermines the INA’s deterrence goals. DAPA’s discretionary grant of benefits to four million foreign nationals would render Congress’s limits superfluous.

Judicial review of DAPA is appropriate to restore the immigration framework’s balance. Because DAPA will have a significant impact and limits officials’ discretion, it is a legislative rule requiring resort to the notice and comment procedures of the Administrative Procedure Act. While DAPA’s supporters assert that it constitutes an unreviewable exercise of prosecutorial discretion under the Supreme Court’s decision in Heckler v. Chaney, DAPA’s broad eligibility criteria remove it from the realm of individual enforcement decisions that Chaney shielded from judicial review. Upon review, DAPA is unworthy of judicial deference, because it fails the “common sense” test outlined by the Supreme Court in FDA v. Brown & Williamson. Given Congress’s recent efforts to curb immigration officials’ discretion, it is implausible that Congress would have authorized the blanket discretion that DAPA entails.

Despite its soundness as policy, DAPA’s fundamental failing as law is its lack of an intelligible limiting principle. While the Obama administration concedes it cannot grant deferred action to all unlawful migrants, it supplies no principled basis for distinguishing the four million potential DAPA beneficiaries from the seven million unlawful migrants left out in the cold. That deficit should be of concern to immigration advocates, who have made a Faustian bargain in supporting the executive branch. Advocates and all devotees of our constitutional order would do well to remember that executive discretion that appears benevolent today can take on a decidedly different cast with changes in the White House. To avoid unwelcome surprises, the worthy project of immigration reform should remain where the Constitution placed it: in Congress.