Abdication Through Enforcement

Abstract

Presidential abdication in immigration law has long been synonymous with the
perceived nonenforcement of certain provisions of the Immigration and Nationality
Act. President Obama’s never-implemented policy of deferred action, known as
DAPA, serves as the prime example in the literature. But can the President abdicate
the duty of faithful execution in immigration law by enforcing the law, i.e., by
deporting deportable noncitizens? This Article argues “yes.” Every leading theory
of the presidency recognizes the President’s role as supervisor of the bureaucracy,
an idea crystallized by several scholars. When the President fails to establish
meaningful enforcement priorities, essentially making every deportable noncitizen a
priority, and resources for enforcement are insufficient to achieve full enforcement,
the President de facto delegates that discretion to the rank and file without requisite
constraints. In so doing, the President abdicates this supervisory role, producing
abdication through enforcement

Keywords: duty to supervise, abdication, faithful execution, Take Care Clause, immigration enforcement discretion, enforcement priorities, deportation, zero tolerance, de facto delegation