Abdication Through Enforcement
Indiana Law Journal, Vol. 96 (2021 Forthcoming)
49 Pages Posted: 13 Apr 2020 Last revised: 10 Aug 2021
Date Written: April 10, 2020
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
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