Deferred Action: Considering What Is Lost

Abstract

This Essay focuses on the cost that comes from the loss of a different kind of discretion in immigration law, where residual discretionary authority can act as a corrective measure at the edges of rules. Such discretion at the law's margins constitutes a vital means to correct the errors that inevitably happen when even the best rules do an imperfect job of capturing the world's complexity. The essay explores who is left in the limbo between DACA and DAPA on the one side, and carefully defined enforcement priorities on the other. This essay also points to the troubling trend that even where discretion remains in these programs and priorities, the discretion exists only to limit the relief available to immigrants: the enforcement box may, as a matter of discretion, expand, but the benefit box may, as a matter of discretion, shrink. The Essay concludes that advocates and scholars can and should celebrate what these programs do accomplish, but we must ultimately demand something much better than the deal we are getting: immigration reform and the restoration of some degree of discretion at the points in the law where well-defined rules meet the individuals who show those rules' limitations.

Keywords: Immigration, Policy, Discretion