The president and immigration law redux

Yale Law Journal

Volumn 125, Issue 1, 2015, Pages 104-225

  Cox, Adam B ^a   Rodríguez, Cristina M ^b  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 84945266452     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (379)

1. See President Barack Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014), http://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration [http://perma.cc/LHK7-DZE4]. The President’s address was accompanied by, and implemented through, a series of memoranda issued by U.S. Secretary of Homeland Security Jeh Johnson.
2. Fixing Our Broken Immigration System Through Executive Action – Key Facts, U.S. DEP’T OF HOMELAND SECURITY (Aug. 19, 2015), http://www.dhs.gov/immigration-action [http://perma.cc/U5K8-RE3R] (displaying the list of memos).
3. National and State Estimates of Populations Eligible for DACA and DAPA Programs, 2009-2013, MIGRATION POL’Y INST. (2015), http://www.migrationpolicy.org/sites/default/files/datahub/DACA-DAPA-2013State%20Estimates-Spreadsheet-FINAL.xlsx [http://perma.cc/RE76-2TBJ].
4. For a detailed account of the President’s initiatives, see infra notes 102-111 and accompanying text. In addition to the deferred action policies, the Department of Homeland Security (DHS) also announced a shift in enforcement priorities more generally. One study estimates that this shift, if “strictly implemented,” coupled with the deferred action programs, could result in eighty-seven percent of unauthorized immigrants in the United States receiving some form of protection or relief from removal. Marc R. Rosenblum, Understanding the Potential Impact of Executive Action on Immigration Enforcement, MIGRATION POL’Y INST. 2 (July 2015), http://migrationpolicy.org/research/understanding-potential-impact-executive-action-immigration-enforcement [http://perma.cc/Y2YS-SRQ8].
5. Infra Part II.A.
6. Infra Parts II.B, III.B.
7. Infra notes 109-311 and accompanying text.
8. Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 YALE L.J. 458 (2009).
9. In The President and Immigration Law, we identified three models that have defined the nature of executive power in immigration law. Each of these models finds some foundation in Supreme Court case law, but because the Court’s opinions generally have been concerned with defining federal power writ large, they abstract from the institutional details of the separation of powers.
10. With the rise of the modern administrative state, the inherent authority model has receded into history. Yet it was not supplanted by a widespread practice of express congressional delegations as has been true in some other regulatory areas (though, to be sure, formal delegations in limited areas of immigration law have also given presidents avenues to advance their own policy objectives in a unilateral fashion).
11. Infra Part I.
12. We discuss our views as to the likely outcome of this litigation Infra Parts II, IV and infra notes 119-310 and accompanying text.
13. For use by supporters, see Memorandum from the Office of Legal Counsel to the Sec’y of Homeland Sec. and the Counsel to the President 10 (Nov. 19, 2014), http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf [http://perma.cc/85Y5-N94M] [hereinafter OLC Memorandum Op.].
14. For use by critics, see Infra notes 152-157 and accompanying text.
15. Cox & Rodríguez, supra note 7, at 483-528
16. Adam Cox & Cristina Rodríguez, Executive Discretion and Congressional Priorities, BALKINIZATION (Nov. 21, 2014, 2:05 PM), http://balkin.blogspot.com/2014/11/executive-discretion-and-congressional.html [http://perma.cc/5A78-NCY9]. In fact, many historical episodes reveal the President exercising immigration enforcement authority in ways contrary to the plausible preferences of Congress.
17. Cox & Rodríguez, supra note 7, at 483-528.
18. Infra Part I.C
19. Cox & Rodríguez, supra note 7, at 510-18 (describing three key aspects of immigration law that effectively delegate “tremendous policymaking power to the President”).
20. Infra text accompanying notes 234-236.
21. Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781 (2013)
22. Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L. REV. 671 (2014)
23. Peter Margulies, President Obama’s Immigration Plan: Rewriting the Law, LAWFARE (Nov. 23, 2014, 4:15 PM), http://www.lawfareblog.com/2014/11/president-obamas-immigration-plan-rewriting-the-law [http://perma.cc/ND78-RDGL]
24. David A. Martin, Concerns About a Troubling Presidential Precedent and OLC’s Review of Its Validity, BALKINIZATION (Nov. 25, 2014, 9:30 AM), http://www.balkin.blogspot.com/2014/11/concerns-about-troubling-presidential.html [http://perma.cc/H4M8-B4MP].
25. Price, supra note 14.
26. infra Part III.A and infra notes 152-294 and accompanying text.
27. In much of the debate over the 2014 policies, commentators have drawn a distinction between legal arguments and policy arguments. See, e.g., Muzaffar Chishti et al., As Implementation Nears, U.S. Deferred Action Programs Encounter Legal, Political Tests, MIGRATION POL’Y INST. (Feb. 11, 2015), http://www.migrationpolicy.org/article/implementation-nears-us-deferred-action-programs-encounter-legal-political-tests [http://perma.cc/7CQH-CNDZ] (analyzing separately political and legal opposition to the President’s actions)
28. Understanding the Legal Challenges to Executive Action: Long on Politics, Short on Law, AM. IMMIGR. COUNCIL (June 2, 2015), http://www.immigrationpolicy.org/sites/default/files/docs/understanding_initial_legal_challenges_to_immigration_accountability_executive_actionlong_on_politics_short_on_law_final.pdf [http://perma.cc/5Z7B-3H2Y] (characterizing legal challenges to the 2014 policies as in fact predicated on policy arguments). Defenders of the President’s actions have insisted that the legal authority for Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) is clear and that the only source of debate is whether it makes good policy sense to defer the removal of unauthorized immigrants.
29. The Unconstitutionality of President Obama’s Executive Actions on Immigration: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 83-84 (2015) (written testimony of Stephen H. Legomsky, Professor, Washington University School of Law) [hereinafter Legomsky, Written Testimony] (“While I appreciate that reasonable minds can and do differ about the policy decisions, I take this opportunity to respectfully share my opinion that the President’s actions are well within his legal authority.”)
30. Hiroshi Motomura, The President’s Discretion, Immigration Enforcement, and the Rule of Law, AM. IMMIGR. COUNCIL (Aug. 26, 2014), http://www.immigrationpolicy.org/perspectives/president%E2%80%99s-discretion-immigration-enforcement-and-rule-law [http://perma.cc/77F3-JVZV] (“[N]o matter how one might debate how the President should weigh these considerations, the fact remains that this is a policy debate.”). But there is a third line of debate, legal in nature, that defenders of the policy sometimes obscure—whether the President’s use of his prosecutorial discretion in the form of the 2014 initiatives reflects a desirable or healthy form of executive decision making. With this Article, we illuminate that terrain. It is possible to conclude that the President’s actions are legal in the sense of being within his constitutional powers historically understood, but to also debate whether they embody a form of presidentialism that advances the objectives of the general separation of powers—a debate we take up throughout this Article. The answer to the latter question may be informed by whether deferring removal of millions of unauthorized immigrants is a good idea, but the two questions are not the same.
31. Mark Noferi, When Reagan and GHW Bush Took Bold Executive Action on Immigration, HILL (Oct. 2, 2014, 12:00 PM), http://thehill.com/blogs/congress-blog/foreign-policy/219463-when-reagan-and-ghw-bush-took-bold-executive-action-on[http://perma.cc/H5QF-ZQN2]
32. Lauren Gilbert, Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. VA. L. REV. 255 (2013).
33. Cox & Rodríguez, supra note 7, at 465-66.
34. Memorandum from President Barack Obama to the Sec’y of Homeland Sec. (Sept. 26, 2014), http://www.whitehouse.gov/the-press-office/2014/09/26/presidential-memorandum-deferred-enforced-departure-liberians [http://perma.cc/3RCD-9P8Y] (extending President Bush’s 2007 grant of deferred enforced departure to Liberians “[p]ursuant to [his] constitutional authority to conduct the foreign relations of the United States”)
35. Adjudicator’s Field Manual, § 38.2: Deferred Enforced Departure, U.S. CITIZENSHIP & IMMIGR. SERVICES, http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-16606/0-0-0-16764.html [http://perma.cc/JK68-927C]. Citing inherent Article II authorities, Presidents since at least George H.W. Bush have halted the removal of nationals to their countries of origins where doing so would have foreign policy implications. DED has been exercised in a very limited fashion, but the President’s turn in these discrete cases to inherent foreign affairs powers as justification presents a puzzle. On the one hand, it may be that the existence of the Temporary Protected Status (TPS) statute, 8 U.S.C. § 1254a (2012), enacted in 1990 to enable the Executive to defer removal of nationals from states coping with environmental calamities or civil strife, requires the President to resort to extrastatutory sources to provide relief for groups who do not fall within the TPS criteria. But it is not altogether clear why the groups given relief pursuant to DED could not have their removal deferred under the theories of prosecutorial discretion advanced to support DAPA and DACA. In other words, why must DED even exist? The answer is likely that the justifications or legal frameworks for various executive policies emerge in an ad hoc fashion and in response to the particular circumstances at issue in a given case. DED evolved out of another exercise of enforcement discretion—extended voluntary departure (EVD), see infra notes 42-48 and accompanying text—and served the very particular foreign affairs needs to which it has been put, namely protecting groups of noncitizens based on their nationality. At the time Presidents began invoking DED, the use of “ordinary” prosecutorial discretion in the form of deferred action does not appear to have been used in a categorical fashion, see infra note 38 and accompanying text (discussing other “categorical” uses of deferred action), and so deferred action might not have appeared as the obvious framework through which to grant relief to the groups given DED, leading Presidents to devise a form of enforcement discretion grounded in inherent presidential authorities, hence the link to foreign affairs. The collection of enforcement powers or programs—EVD, DED, deferred action—highlights how the content of the enforcement power develops historically and iteratively, as opposed to emanating from some sort of ex ante, coherent constitutional scheme of powers.
36. Today, the parole power is codified at 8 U.S.C. § 1182(d)(5) (2012) and permits the President to parole otherwise inadmissible noncitizens into the country “for urgent humanitarian reasons or significant public benefit.”
37. Cox & Rodríguez, supra note 7, at 502.
38. Even though deferred action is styled as temporary, its opponents believe, with reason, that its extension will create settled expectations, which, when they exist on a large scale, may effectively tie the hands of future administrations and perhaps even require Congress eventually to recognize the temporary status as permanent. We discuss this phenomenon of entrenchment further infra notes 286-294 and accompanying text. In our view, we think it is far more likely that the Obama relief initiatives will tie the hands of future administrations rather than force Congress to adopt a legalization program. As a result, the initiatives do present a risk of further entrenching the unauthorized population, thus threatening the creation of a permanent underclass. That said, we could describe the state of affairs pre-DACA and DAPA the same way, suggesting that the President’s relief initiatives make the best of a bad situation.
39. Edward M. Kennedy, Refugee Act of 1980, 15 INT’L MIGRATION REV. 141-146 (1981).
40. Refugee Act of 1980, Pub. L. No. 96-212, § 201, 94 Stat. 102, 102-03.
41. 8 U.S.C. § 1254a (2012). TPS replaced the Executive’s use of a discretionary mechanism, known as Extended Voluntary Departure (EVD), to provide relief from removal for persons fleeing certain kinds of disasters. See KATE M. MANUEL & MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., R43782, EXECUTIVE DISCRETION AS TO IMMIGRATION: LEGAL OVERVIEW 6 (2014). For further discussion of EVD, see infra notes 42-46 and accompanying text. TPS filled a gap in the statutory protection of noncitizens fleeing calamities. The Refugee Act’s asylum provisions, and pre-existing provisions authorizing the withholding of removal, applied only to those who met the definition of refugee, which required having a fear of persecution on account of one of several recognized grounds, including political opinion, race, and religion—the classic definition of refugee. The TPS statute provided a statutory mechanism for the Executive to protect persons fleeing disaster and civil strife.
42. Bill Frelick & Barbara Kohnen, Filling the Gap: Temporary Protected Status, 8 J. REFUGEE STUD. 339 (1995).
43. Cox & Rodríguez, supra note 7, at 539. The statutory scheme requires the President’s “appropriate consultation” with Cabinet members and members of congressional committees in determining that refugee admissions are justified and in setting admissions numbers. Immigration and Nationality Act § 207(a)(3)-(e), 8 U.S.C. § 1157(a)(3)-(e) (2012)
44. Stephen H. Legomsky, The Making of United States Refugee Policy: Separation of Powers in the Post-Cold War Era, 70 WASH. L. REV. 675-697 (1995) (characterizing section 1157(e) as requiring “personal discussion”).
45. Legomsky, supra note 30, at 699-700.
46. In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador and Guatemala (Central American Minors—CAM), U.S. CITIZENSHIP & IMMIGR. SERVICES (Feb. 9, 2015), http://www.uscis.gov/humanitarian/refugees-asylum/refugees/country-refugeeparole-processing-minors-honduras-el-salvador-and-guatemala-central-american-minors-cam [http://perma.cc/782B-GPEK].
47. The parole provision of the INA authorizes parole for “any alien applying for admission.” Immigration and Nationality Act § 212(d)(5), 8 U.S.C. § 1182(a)(5)(A) (2012). Section 235(a)(1) of the INA (8 U.S.C. § 1125(a)(1) (2012)), in turn, defines “applicant for admission” to include noncitizens present in the United States without having been admitted. Thus, while parole was available, prior to some 1996 changes to immigration law, only to noncitizens who had yet to enter the United States, the Executive has now interpreted its parole authority to extend to immigrants who have entered the country without having been admitted. See, e.g., Memorandum from the U.S. Dep’t of Justice Office of the Gen. Counsel to Immigration & Naturalization Serv. Officials (Aug. 21, 1998), reprinted in 76 INTERPRETER RELEASES 1050 app. (1999).
48. See Policy Memorandum from the U.S. Citizenship & Immigration Servs. (Nov. 15, 2013), http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2013/2013-1115_Parole_in_Place:Memo_.pdf [http://perma.cc/4VUN-K2TV].
49. Memorandum from Gene McNary, Comm’r, Immigration & Naturalization Serv., to Reg’l Comm’rs (Feb. 2, 1990); INS Reverses Family Fairness Policy, 67 INTERPRETER RELEASES 153 (1990). The Reagan Administration deferred removal of minor children where all parents with whom the child was living had permanently legalized their status pursuant to IRCA.
50. INS Announces Limited Policy on Family Unity, 64 INTERPRETER RELEASES 1191 (1987). The Administration also deferred removal of spouses on a case-by-case basis, where “compelling or humanitarian factors” existed. Id. When the Immigration and Nationalization Service (INS) continued the policy under President Bush in 1990, the agency amended the policy to include most spouses and unmarried minor children. See INS Reverses Family Fairness Policy, 67 INTERPRETER RELEASES 153-54 (1990) (enumerating the prerequisites for spouses and children to benefit from the family fairness policy, including admissibility as immigrants and a maximum number of criminal convictions).
51. It is worth pausing for a moment in thinking about this episode to observe that the actions of Presidents Reagan and Bush arguably defy conventional understandings of how party dynamics affect immigration policy. We might not have expected Republican presidents to extend the reach of a legislative “amnesty.” These Presidents’ actions might be evidence of how the Republican Party in particular has evolved, as well as evidence of the way in which American presidents have often supported more open immigration policies than have their contemporaries in Congress. For a discussion of this pattern over time, see Adam B. Cox, Enforcement Redundancy and the Future of Immigration Law, 2012 SUP. CT. REV. 31.
52. Cox & Rodríguez, supra note 7, at 484 (discussing presidents’ repeated veto of literacy tests for immigrant screening adopted by Congress).
53. Immigration Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978, 5029-39; see also JOYCE C. VIALET, CONG. RESEARCH SERV., 91-493
54. EPW, IMMIGRATION LEGISLATION—QUESTIONS AND ANSWERS 1 (1991) (explaining the deferral and work authorization provisions for spouses and unmarried children of legalized noncitizens in the Immigration Act of 1990’s “Family Unity” section)
55. Applicant Processing for Family Unity Benefits, 57 Fed. Reg. 6457-62 (Feb. 25, 1992) (interim rule implementing the Family Unity Program)
56. The Immigration Act of 1990 Analyzed: Part 2—Family-Sponsored Immigrants, 67 INTERPRETER RELEASES 1393-99 (1990) (detailing the Family Unity Program’s statutory provisions and legislative history).
57. In this sense, the “family fairness” initiatives resemble decisions by President Clinton to defer the removal of victims of domestic abuse during debate over the reauthorization of the Violence Against Women Act (VAWA), which contained provisions that would have made them eligible for visas. They also resemble President George W. Bush’s decision to defer the removal of student visa holders who temporarily lost their enrolled student status in the wake of Hurricane Katrina. See Memorandum from Paul W. Virtue, Acting Exec. Assoc. Comm’r, Immigration & Naturalization Serv., to Reg’l Dirs., Dist. Dirs., Officers-in-Charge & Serv. Ctr. Dirs. (May 6, 1997), http://www.asistahelp.org/documents/resources/Virtue_Memo_97pdf_53DC84D782445.pdf [http://perma.cc/RH5S-SWGE] (explaining the process for deferred action and work authorization during the debates over VAWA); Press Release, U.S. Citizenship & Immigration Servs., USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina (Nov. 25, 2005), http://www.uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR.pdf [http://perma.cc/H9PK-X5YG] (announcing the deferral of removal for F-1 visa holders whose enrollment was affected by Hurricane Katrina). The deferrals, while categorical, can also be characterized as transitional.
58. Because those legalized by the IRCA would become eligible to petition for the admission of their spouses and children through the already existing immigration system, deferring their removal would arguably have simply facilitated the inevitable operation of the law. The fight in Congress was about whether to allow spouses and children to “skip the line,” or become permanent residents without having to wait for the green card queue to run its course. See S. COMM. ON THE JUDICIARY, IMMIGRATION REFORM AND CONTROL ACT OF 1985, S. REP. NO. 99-132, at 16 (1985) (“It is the intent of the Committee that the families of legalized aliens will obtain no special petitioning rights by virtue of the legalization. They will be required to ‘wait in line’ in the same manner as immediate family members of other new resident aliens.”). In IRCA, Congress initially rejected that option, but in so doing it did not expressly or even impliedly preclude the President from deferring removal of that same group of noncitizens.
59. We think this claim of defiance would go too far, for the reasons expressed supra note 39.
60. As we discuss infra Part II, the Office of Legal Counsel in the Department of Justice found the President’s decision to initiate DAPA lawful in part because it concluded that DAPA cohered with congressional priorities of family unity expressed in the Act. As we note there, however, this claim is not that Congress delegated authority to the President to initiate DACA and DAPA. Rather, it is a claim that, in the enforcement of the INA, the President’s DACA and DAPA programs advance a congressional priority, which implies that for the exercise of enforcement discretion to be lawful, it must match up with some goals of Congress.
61. Certain class-based deferrals, characterized after the fact as examples of EVD, were not understood at the time to be exercises of EVD, underscoring the murkiness of the sources of discretionary decision making by the President in immigration law. SHARON STEPHAN, CONG. RESEARCH SERV., 85-599 EPW, EXTENDED VOLUNTARY DEPARTURE AND OTHER GRANTS OF BLANKET RELIEF FROM DEPORTATION 10 (1985).
62. See H.R. REP. NO. 89-1978, at 2 (1966) (observing that in September 1966, prior to the Cuban Adjustment Act, roughly 47,000 Cubans benefited from EVD).
63. See Oversight of INS Policies and Legal Issues: Hearing Before the Subcomm. on Immigration, Citizenship, & Int’l Law of the H. Comm. on the Judiciary, 95th Cong. 86-87 (1978) [hereinafter Oversight Hearing] (statement of David Crosland, General Counsel, Immigration and Naturalization Service) (describing the INS Operations Instructions in effect from 1956 to 1972 granting voluntary departure to certain highly skilled noncitizens, including foreign medical graduates)
64. 93 CONG. REC. 13-844 (1973) (including INS associate commissioner stating that certain individuals from the Western Hemisphere with familybased visa preference would receive EVD)
65. MANUEL & GARCIA, supra note 29, at 6 (listing EVD grants, at various times during the 1960s and 1970s, to those from, inter alia, Chile, Czechoslovakia, the Dominican Republic, Ethiopia, Hungary, Romania, Iran, Nicaragua, and Uganda).
66. Extended Voluntary Departure Issues: Hearing on S. 337 Before the Subcomm. on Immigration & Refugee Policy of the S. Comm. on the Judiciary, 99th Cong. 67 (1985) (statements of Elliott Abrams, Assistant Secretary of State, Bureau of Human Rights and Humanitarian Affairs, and Alan C. Nelson, Comm’r, Immigration and Naturalization Service).
67. The Reagan Administration cited statutory provisions that, after changes in the immigration laws’ organization, are now codified at 8 U.S.C. § 1229c(a)(1) (2012), which provides that “[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense.” See Temporary Safe Haven Act of 1987: Hearing Before the Subcomm. On Immigration, Refugees, & Int’l Law of the H. Comm. on the Judiciary, 100th Cong. 163 (1987) [hereinafter Temporary Safe Haven Act Hearing] (statement of the Office of Legislative Affairs to questions posed by Rep. Romano L. Mazzoli). On this reading, the statute’s lack of a specific required time period for the voluntary departure confers on the Attorney General the power to grant EVD to classes of individuals.
68. Temporary Suspension of Deportation for Nationals of Certain Countries: Hearing on H.R. 822 Before the Subcomm. on Immigration, Refugees, & Int’l Law of the H. Comm. on the Judiciary, 99th Cong. 1 (1985)
69. Extended Voluntary Departure Issues: Hearing on S. 337 Before the Subcomm. on Immigration & Refugee Policy of the S. Comm. on the Judiciary, 99th Cong. 1 (1985)
70. Extended Voluntary Departure for Salvadorans: Hearing on H.R. 4447 Before the Subcomm. on Rules of the H. of the H. Comm. on Rules, 98th Cong. 1 (1984)
71. Temporary Suspension of Deportation of Certain Aliens: Hearing on H.R. 4447 Before the Subcomm. On Immigration, Refugees, & Int’l Law of the H. Comm. on the Judiciary, 98th Cong. 1 (1984).
72. International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113, § 731, 95 Stat. 1519, 1557 (codified at 8 U.S.C. § 1157 (2012)); Department of State Authorization Act, Fiscal Years 1984 and 1985, Pub. L. No. 98-164, § 1012, 97 Stat. 1017, 1062 (1983).
73. For a discussion of the TPS program that replaced EVD, see supra note 29 and accompanying text.
74. As noted above, supporters of the Administration have enthusiastically cited family fairness as precedent for the President’s actions, both because the policy was based not on delegated authority but on the President’s enforcement power, and because of the scale of relief it provided. See Noferi, supra note 18
75. Legomsky, Written Testimony, supra note 17, at 83-84 (discussing the “family fairness” policies of Presidents Reagan and George H.W. Bush and their similarities to President Obama’s policies). Though Congress considered and rejected the inclusion of spouses and children in IRCA’s legalization program, we still think it possible to regard Presidents Reagan and George H.W. Bush’s enforcement actions as transitional, in the sense that the legalization program gave immigration status to its beneficiaries that in turn would have enabled them to petition for the admission of their spouses and children through already existing channels. DACA cannot be characterized in that fashion, because there is no clear existing route in the law for its beneficiaries to petition for lawful status. See infra note 105 and accompanying text. As for the beneficiaries of DAPA, while they may one day be able to adjust status, without DAPA, because of their relationships to U.S. citizens and lawful permanent residents (LPRs), in many cases that adjustment would be so far in the future as to stretch thin the meaning of transition. See infra notes 150-151 and accompanying text. More important, the political context of IRCA differs dramatically from the present one. We think it at least arguable that Congress’s creation of a legalization program in 1986 licensed executive authority to engage in gap filling and other forms of ameliorative action throughout implementation. To be clear, the absence of such license in the current context does not make the Obama relief initiatives unlawful. It just makes them different from family fairness. Ultimately, however, we think these debates about the details of family fairness and its resemblance to DACA and DAPA amount to a red herring because they obscure the larger difficulties of using history as legal precedent.
76. 6 U.S.C. § 202 (2012) (“The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following … (5) Establishing national immigration enforcement policies and priorities.”); 8 U.S.C. § 1103 (2012); Legomsky, Written Testimony, supra note 17, at 90 (citing “the additional broad authority conferred by 8 U.S.C. § 1103(a)”); OLC Memorandum Op., supra note 10, at 3-4.
77. For a discussion of the power of prosecutors and proposals for how to rein in that power through institutional design, see Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869 (2009)
78. Rachel E. Barkow, Prosecutorial Administration: Prosecutor Bias and the Department of Justice, 99 VA. L. REV. 271 (2013).
79. For an account of the President’s use of the enforcement power to advance his objectives in civil contexts, see Kate Andrias, The President’s Enforcement Power, 88 N.Y.U. L. REV. 1031, (2013), which argues that the President’s enforcement authority has been extensive but also “ad hoc, crisis-driven, and frequently opaque.”
80. These choices sometimes but do not always track partisan lines, for Republicans and Democrats alike have reasons to support both strong and lax enforcement. For a discussion of these dynamics with reference to the enforcement of a particular statutory framework—in this case, the employer sanctions provisions—see Infra notes 58-77 and accompanying text.
81. Under the Obama Administration, there is some evidence that enforcement resources have been shifting toward the border. For example, the number of interior removals has been falling for several years. See Rosenblum, Supra note 3, at 6.
82. For a discussion of Congress’s grants of power to the Executive to build physical barriers at the border and a more general analysis of the utility of border enforcement as a screening mechanism, see Cox & Rodríguez, Supra note 7, at 524-28.
83. For recent developments related to this sort of enforcement, see Infra notes 96-98 and accompanying text.
84. For a discussion of the use of appropriations law, see Infra notes 170-172 and accompanying text.
85. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 101, 100 Stat. 3359, 3360-72 (codified at 8 U.S.C § 1324a (2012)).
86. Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193-204 (describing IRCA’s employer sanctions as part of a one-time “grand bargain” among interest groups).
87. Data on the enforcement of employer sanctions is spotty and often relies on inconsistent methodologies. ANDORRA BRUNO, CONG. RESEARCH SERV., R40002, IMMIGRATIONRELATED WORKSITE ENFORCEMENT: PERFORMANCE MEASURES 4 (2015) (noting that assessments of worksite enforcement programs have been complicated by “data reporting problems, the existence of conflicting data,” and the paucity of data before the creation of Immigration and Customs Enforcement (ICE)). But data pertaining to different discrete periods of IRCA enforcement are suggestive of underenforcement.
88. Arizona v. United States, 132 S. Ct. 2492, 2503-08 (2012).
89. Verification of Eligibility for Employment and Benefits: Hearing Before the Subcomm. On Immigration & Claims of the H. Comm. on the Judiciary, 104th Cong. 8 (1995) (statement of Barbara Jordan, Chair, U.S. Commission on Immigration Reform) (arguing that IRCA’s work authorization verification system failed to “[r]educ[e] the employment magnet”)
90. S. REP. NO. 113-40, at 11 (2013) (criticizing IRCA’s employer sanctions and legalization scheme for having “significant gaps”)
91. H.R. REP. NO. 104-469, pt. 1, at 129 (1996) (faulting INS’s enforcement of IRCA sanctions as “[t]epid”); Wishnie, supra note 59, at 209-11 (discussing the “decline in government enforcement” as part of an argument for repealing IRCA’s employer sanctions).
92. Doris Meissner et al., Immigration Enforcement in the United States: The Rise of a Formidable Machinery, MIGRATION POL’Y INST. 23-116 (Jan. 2013), http://www.migrationpolicy.org/sites/default/files/publications/enforcementpillars.pdf [http://perma.cc/R38H-GQRE] (describing the implementation of IRCA and other immigration enforcement systems, including border enforcement and criminal justice system intersections).
93. MICHAEL FIX & PAUL T. HILL, ENFORCING EMPLOYER SANCTIONS: CHALLENGES AND STRATEGIES 3 (1990) (describing concerns with the implementation of the employer sanctions)
94. Peter Brownell, The Declining Enforcement of Employer Sanctions, MIGRATION POL’Y INST. (Sept. 1, 2005), http://www.migrationpolicy.org/article/declining-enforcement-employer-sanctions [http://perma.cc/WV33-3XL8].
95. DANIEL J. TICHENOR, DIVIDING LINES: THE POLITICS OF IMMIGRATION CONTROL IN AMERICA 262-63 (2002).
96. Brownell, Supra note 64.
97. Deterring Illegal Immigration: Memorandum for the Heads of Executive Departments and Agencies, 60 Fed. Reg. 7885, 7885-86 (Feb. 10, 1995). For a time in 1996, the Administration also launched a series of high-profile worksite raids. ALISON SISKIN et al., CONG. RESEARCH SERV., RL33351, IMMIGRATION ENFORCEMENT WITHIN THE UNITED STATES 37-38 (2006)
98. INS Steps Up Worksite Enforcement, Targets Eastern U.S., 73 INTERPRETER RELEASES 531 (1996). But by 1998, criticism from Congress, industry, and advocacy groups led the Administration to soften its enforcement strategy by curbing the abusive tactics critics had identified.
99. INS Distributes New Guidelines for Worksite Raids, 75 INTERPRETER RELEASES 979 (1998). In December 1998, further responding to advocates’ concerns over the implications of worksite enforcement for the protection of workers, the INS and the Department of Labor (DOL) entered into a memorandum of understanding, according to which DOL would cease referring suspected immigration law violators who complained about worksite violations to INS.
100. Labor Department, INS Sign MOU on Labor Standards and Employer Sanctions, 75 INTERPRETER RELEASES 1696 (1998).
101. The focus on noncitizens with criminal convictions was also facilitated by a series of legislative changes in the Illegal Immigrant and Immigration Reform Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009.
102. According to the Pew Hispanic Center, between 2000 and 2010, the estimated unauthorized labor force ranged from 5.5 million in 2000 to as high as 8.4 million in 2007. See Jeffrey S. Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010, PEW RES. CTR. 17 (Feb. 1, 2011), http://www.pewhispanic.org/files/reports/133.pdf [http://perma.cc/ZDP3-YLJR].
103. BRUNO, supra note 60, at 5 tbl.1.
104. Interestingly, even in this period we are not aware of anyone arguing that the lack of enforcement violated the statute or the Take Care Clause of the Constitution.
105. BRUNO, Supra note 60, at 5-6.
106. Meissner et al., Supra note 63, at 84 (citing Bruno, supra note 60).
107. The Supreme Court has recognized as much, for reasons we explore in the immediately following section, Part I.C. See Infra notes 88-90 and accompanying text.
108. A key consequence of this mismatch has been the emergence of a large gap between formal citizenship and a sociological account of membership—a distinction even courts have recognized when assessing whether and how unauthorized immigrants constitute subjects under the Constitution. See Cristina M. Rodríguez, Immigration, Civil Rights & the Evolution of the People, 142 DAEDALUS 228-35 (2013). This sociological understanding of membership helps to explain the power of de facto delegation and executive branch policymaking, which arises from the fact that a perfect world is not a world of perfect compliance with current immigration law.
109. Infra Part III.C.2.
110. These trends, in turn, have been the function of complex legal, economic, labor market, and social forces in the United States, Mexico, and elsewhere. See, e.g., MARCELO SUÁREZOROZCO et al., THE NEW IMMIGRATION: A READER, at 9-10 (2005) (noting that “[t]he current pattern of U.S. immigration” began “to intensify in 1965 and gained extraordinary momentum in the last two decades” and attributing this pattern to the combination of the postindustrial economy’s “voracious appetite” for labor, the emphasis of the 1965 immigration reforms on family unity, social forces such as the ease of transportation and dissemination of information, and variables such as armed conflict and political repression).
111. Jeffrey S. Passel et al., Population Decline of Unauthorized Immigrants Stalls, May Have Reversed, PEW RES. CTR. (Sept. 23, 2013), http://www.pewhispanic.org/2013/09/23 /population-decline-of-unauthorized-immigrants-stalls-may-have-reversed [http://perma.cc/Z8ZE-VEBB]. Demographers pinpoint the peak of illegal immigration to the United States to sometime in the early 2000s. The size of the unauthorized population present in the United States has remained relatively constant in recent years, even as net migration has approached near zero, as the result of factors such as the Great Recession, demographic shifts in Mexico, and U.S. enforcement policy at the border. See Jeffrey S. Passel et al., Net Migration from Mexico Falls to Zero—and Perhaps Less, PEW RES. CTR. (Apr. 23, 2012), http://www.pewhispanic.org/2012/04/23/net-migration-from-mexico-falls -to-zero-and-perhaps-less [http:// perma.cc/96PZ-ZLLV].
112. According to the 2010 Census, approximately 22,480,000 noncitizens reside in the United States. See Elizabeth M. Grieco et al., The Foreign-Born Population in the United States: 2010, U.S. CENSUS BUREAU 2 (May 2012), http://www.census.gov/prod/2012pubs/acs-19.pdf [http://perma.cc/SBG6-UT8T].
113. 8 U.S.C. § 1101(a)(43) (2012) (defining “aggravated felony”). For an accounting of these trends and an explanation of how a once narrow definition has become a “colossus,” see Stephen H. Legomsky & Cristina M. Rodríguez, IMMIGRATION AND REFUGEE LAW AND POLICY 597-99 (6th ed. 2015).
114. Cox & Rodríguez, Supra note 7, at 511-19.
115. Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809-44 (2007) (arguing that the Executive may prefer a system of illegal immigration because it poses fewer constitutional obstacles to removal)
116. Cristina M. Rodríguez, The Citizenship Paradox in a Transnational Age, 106 MICH. L. REV. 1111-24 (2008) (reviewing HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006)) (arguing that citizens and lawmakers have tolerated illegal immigration because of its economic benefits). Whether any given administration has in fact tolerated illegal immigration may be in the eye of the beholder. For immigrants’ rights activists, enforcement policy in recent years has seemed to mercilessly target large numbers of unauthorized immigrants with families and ties in the United States. For enforcement enthusiasts, the presence of millions of unauthorized immigrants suggests a lack of will on the Executive’s part to remove.
117. Meissner et al., Supra note 63 (describing the build-up of federal immigration enforcement resources over the last several decades).
118. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (“Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to thecommunity, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations…. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.” (emphasis add d)).
119. Cox, supra note 36, at 54.
120. Justice Kennedy’s conception of federal law even seems to contemplate that the enacting Congress understands the Executive Branch will make crucial choices about the reach of a statute when it creates the enforcement scheme to begin with. See Arizona, 132 S. Ct. at 2499. As we explain below, however, our account does not turn on ascribing specific intent to the enacting Congress(es). See infra text accompanying notes 139-148.
121. Cox & Rodríguez, Supra note 7, at 511.
122. DAVID ALAN SKLANSKY, DEMOCRACY AND THE POLICE (2008)
123. David Alan Sklansky, Prosecutorial Discretion Through the Looking Glass, BALKINIZATION (Nov. 23, 2014, 10:30 AM), http://balkin.blogspot.com/2014/11/prosecutorial-discretion-through.html [http://perma.cc /H8AD-Q9DV].
124. Cox & Rodríguez, Supra note 7, at 528-36.
125. The role of state and local officials in driving federal immigration enforcement has been a subject of extended scholarly inquiry. Studies of the 287(g) Program, for example, have shown that the priorities of state and local officials involved in immigration enforcement often veer from those of federal officials, though federal agents in the field can also develop common cause with local officials, creating tension with officials in Washington. See, e.g., Randy Capps et al., Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement, MIGRATION POL’Y INST. (2011), http://migrationinformation.org /sites/default/files/publications/287g-divergence.pdf [http://perma.cc/EB3H-B98R].
126. In addition, because convictions under state law serve as predicates for removal, the federal government has been dependent on cooperation from state police to identify potentially removable noncitizens, and state and local arrests and prosecutions can determine who gets funneled into removal proceedings. See Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 UCLA L. REV. 1749 (2011) (showing how Arizona employed criminal anti-smuggling laws in ways that redefined and restructured the system of immigration enforcement)
127. Hiroshi Motomura, The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line, 58 UCLA L. REV. 1819 (2011) (arguing that state and local police have de facto power to set the immigration enforcement agenda through ordinary policing and that any policy that permits state and local police to act as gatekeepers can undermine federal authority).
128. Cristina M. Rodríguez, Negotiating Conflict Through Federalism: Institutional and Popular Perspectives, 123 YALE L.J. 2094-2105 (2014)
129. Cox, supra note 36.
130. Memorandum from John Morton, Dir., Immigration and Customs Enf’t (ICE), to Field Office Dirs., Special Agents in Charge & Chief Counsel 1 (June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf [http://perma.cc/V3FE-DTUG] [hereinafter Morton, Exercising Prosecutorial Discretion]
131. Memorandum from John Morton, Dir., ICE, to Field Office Dirs., Special Agents in Charge & Chief Counsel 1 (June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/domestic -violence.pdf [http://perma.cc/XN2F-ZG33]
132. Memorandum from Julie L. Myers, Assistant Sec’y, ICE, to Field Office Dirs. & Special Agents in Charge 1 (Nov. 7, 2007), http://www.ice.gov/doclib/foia/prosecutorial-discretion/custody-pd.pdf [http://perma.cc /9XEQ-LLDJ]
133. Memorandum from Doris Meissner, Comm’r, Immigration and Naturalization Service, to Reg’l Dirs., Dist. Dirs., Chief Patrol Agents & Reg’l & Dist. Counsel 1 (Nov. 17, 2000), http://www.legalactioncenter.org/sites/default/files/docs/lac /Meissner-2000-memo.pdf [http://perma.cc/2DEH-8TLB].
134. Adam B. Cox & Thomas J. Miles, Policing Immigration, 80 U. CHI. L. REV. 87 (2013)
135. Rodríguez, supra note 95, at 2105 n.26 (describing Secure Communities as reflecting a desire to use “federalism’s institutions while holding its actors at bay”). Under the program, the FBI shares with DHS the fingerprint and arrest data sent to it by state and local police. DHS then runs the data through its own database to determine if state and local police have identified a potentially removable noncitizen. ICE then determines whether to request that local officials hold the noncitizen until it can decide whether to take custody for removal purposes.
136. Cox & Miles, supra, at 93-96. The 2014 replacement of Secure Communities with the Priority Enforcement Program leaves the data-sharing function in place and simply changes what the Administration will do with the information it receives from the FBI and, by extension, state and local officials.
137. It should be noted that this centralization is relative. Because ICE depends on information held by local and state officials to do its job, it cannot avoid interacting with those bureaucracies.
138. Arizona v. United States, 132 S. Ct. 2492 (2012). The Court struck down most of Arizona’s attempt to augment federal immigration enforcement, though it left in place the most notorious provision of the statute, which requires law enforcement officials to inquire into immigration status in certain circumstances. Id. at 2510 (“At this stage … it would be inappropriate to assume § 2(B) will be construed in a way that creates a conflict with federal law.”). It remains unclear the extent to which that provision has been used, for good or for ill, and much of the political momentum behind provisions of this sort appears to have subsided for now. See Cristina M. Rodríguez, Toward Détente in Immigration Federalism, 30 VA. J.L. & POL. (forthcoming 2015) (manuscript at 17 & n.49), http://ssrn.com/abstract=2624672 [http://perma.cc/AE2Q-3A3J].
139. MARC R. ROSENBLUM & WILLIAM A. KANDEL, CONG. RESEARCH SERV., R42057, INTERIOR IMMIGRATION ENFORCEMENT: PROGRAMS TARGETING CRIMINAL ALIENS 25 tbl.6 (2012) (presenting interior enforcement actions by the program from fiscal year 2004 to fiscal year 2011).
140. Rodríguez, supra note 95, at 2121
141. Rodríguez, supra note 99 (manuscript at 12-14). This resistance helped prompt the Administration’s change in policy and demonstrated the power of the local in cooperative ventures. As Homeland Security Secretary Johnson wrote at the time of the program’s discontinuation: The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. But the reality is the program has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation …. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program …. The overarching goal of Secure Communities remains in my view a valid and important law enforcement objective, but a fresh start and a new program are necessary.
142. Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t Homeland Sec., to Thomas S. Winkowski, Acting Dir., ICE, et al. 1 (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf [http://perma.cc/UYG3 -EWVK] [hereinafter Johnson, Secure Communities Memo].
143. Press Release, U.S. Dep’t of Homeland Sec., Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities (June 15, 2012), http://www.dhs.gov/news/2012/06/15/secretary-napolitano-announces-deferred-action-process-young-people-who-are-low [http://perma.cc/83EK-N89S].
144. Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., et al. (June 15, 2012) [hereinafter Napolitano, Prosecutorial Discretion Memo], http://www.dhs.gov/xlibrary/assets/s1 -exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf [http:// perma.cc/2HX6-G4H4].
145. The decision to defer action, or delay or decline removal, functions like the criminal prosecutor’s choice not to pursue a case. In the immigration setting, noncitizens whose prosecutions have been deferred have historically been eligible to apply for work permits pursuant to INS and now DHS regulation and are considered to be lawfully present for certain purposes, though deferred action does not confer on them a lawful immigration status. See Frequently Asked Questions, U.S. CITIZENSHIP & IMMIGR. SERVICES, http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions [http://perma.cc/4KVM-P4G5].
146. Though Congress has not affirmatively authorized the practice or weighed in on its scope and the Supreme Court has not directly addressed its permissibility, both had acknowledged deferred action as part of the system of immigration enforcement prior to the announcement of DACA. See 8 U.S.C. § 1154(a)(1)(D)(i)(IV) (2012) (characterizing certain petitioners for immigrant status subjected to familial abuse as “eligible for deferred action and work authorization”); id. § 1227(d)(2) (2012) (stating that the denial of a request for an administrative stay of removal is no bar to applying for “deferred action”); Reno v. Am.- Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (describing deferred action as INS’s “regular practice … of exercising … discretion for humanitarian reasons or simply for its own convenience”).
147. U.S. Citizenship & Immigration Servs., Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012- 2015 (December 31), U.S. DEP’T HOMELAND SECURITY (2015), http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/I821d_performancedata_fy2015_qtr1.pdf [http://perma.cc /RNW2-9WNJ] (listing total cumulative initial DACA grants from the program’s start through December 31, 2014). In August 2014, after the initial two-year period of DACA expired, the Administration began processing applications for renewal of deferred action status. Cf. U.S. CITIZENSHIP & IMMIGR. SERVICES, supra note 105 (indicating the procedure for renewal of DACA). Roughly 148,171 cumulative renewals have been granted. U.S. Citizenship & Immigration Servs., supra (listing total cumulative renewal grants through December 31, 2014).
148. Michael D. Shear, Obama, Daring Congress, Acts To Overhaul Immigration, N.Y. TIMES, Nov. 20, 2014, http://www.nytimes.com/2014/11/21/us/obama-immigration-speech.html [http://perma.cc/352G-VHR2]
149. Press Release, Office of the Press Sec’y, White House, Weekly Address: Immigration Accountability Executive Action (Nov. 22, 2014), http://www.whitehouse.gov/the-press-office/2014/11/22/weekly-address-immigration-accountability-executive-action [http://perma.cc/Q2B3-2RK4].
150. Memorandum from Jeh Charles Johnson, Sec’y of Homeland Sec., to León Rodríguez, Dir., U.S. Citizenship & Immigration Servs., Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf’t, and R. Gil Kerlikowske, Comm’r of U.S. Customs & Border Prot. 4 (Nov. 20, 2014) [hereinafter Johnson, DACA and DAPA Memo], http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf [http://perma.cc/Z7B9-K5MG]. The Administration originally called the program Deferred Action for Parental Accountability.
151. On February 16, 2015, a judge in the Southern District of Texas enjoined the implementation of DAPA, concluding that the Administration violated the Administrative Procedure Act (APA) by failing to initiate notice-and-comment rulemaking for what the judge characterized as a legislative rule. See Texas v. United States, Civ. No. B-14-254, 2015 WL 648579, at *62 (S.D. Tex. Feb. 16, 2015). We discuss the APA question below. See Infra notes 308-318 and accompanying text.
152. Johnson, DACA and DAPA Memo, Supra note 108, at 3. DACA initially made eligible only those childhood arrivals who were under the age of 31 at the time they applied for relief under DACA.
153. Napolitano, Prosecutorial Discretion Memo, supra note 103.
154. This limit on one’s age at the time of application was eliminated in the changes announced on November 20, 2014. See Johnson, DACA and DAPA Memo, supra note 108, at 3.
155. Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enf’t, et al. 3-4 (Nov. 20, 2014) [hereinafter Johnson, Enforcement Priorities Memo], http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf [http://perma.cc/EQ57-XP42] (prioritizing for enforcement purposes, in tier one, those posing “threats to national security, border security, and public safety,” in tier two “misdemeanants and new immigration violators,” and in tier three all other recent immigration violators). As part of this enforcement reform, the Administration also announced the reformulation of the Secure Communities Program. Though DHS would continue to rely on fingerprint data collected from state and local arrests, it would change DHS’s enforcement policy from requesting that state and local police detain noncitizens for removal to, instead, requesting that police simply notify DHS that the release of potentially removable noncitizens from local custody was pending.
156. Johnson, Secure Communities Memo, Supra note 101, at 1-3.
157. Zachary Price, Two Cheers for OLC’s Opinion, BALKINIZATION (Nov. 25, 2014, 1:30 PM), http://balkin.blogspot.com/2014/11/two-cheers-for-olcs-opinion.html [http://perma.cc/E7JV-EG53] (warning of the one-way ratchet of reliance on past executive branch practice to establish the legality of a present-day action and noting that “the constitutional architecture supports an important background norm that executive officials still must seek to effectuate statutory policies”).
158. The existence of this authority does not mean, of course, that such discretion is never defeasible. A group of ICE agents challenged DACA on the ground that the INA stripped agency personnel of this discretion and now mandates the initiation of removal proceedings against noncitizens who are inadmissible for having entered the United States without inspection. See Complaint, Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) (No. 3:12-CV-03247-O), 2012 WL 3629252 (arguing that Congress’s use of the word “shall” in 8 U.S.C. § 1225(b)(2)(A) (2012), which states that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding,” mandates the initiation of removal proceedings (emphasis omitted)). For a convincing demolition of this statutory claim about the INA, see David A. Martin, A Defense of Immigration- Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J. ONLINE (2012), http://www.yalelawjournal.org/forum/a-defense-of-immigration -enforcement-discretion-the-legal-and-policy-flaws-in-kris-kobachs-latest-crusade [http:// perma.cc/TJP6-2Y4F].
159. For a discussion of the resolution of this case, see Infra note 120.
160. For a discussion of the tools available to Congress, see Infra notes 299-301 and accompanying text.
161. U.S. CONST. art. II, § 3. But cf. ERIC POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND 113-53 (2011) (arguing that the political need to maintain credibility and respond to public opinion, not legal norms or constitutional rules, constrains the Executive).
162. Extensive literature explores the pervasiveness of and reasons for underenforcement, as well as its potential costs. See Jonathan M. Barnett, The Rational Underenforcement of Vice Laws, 54 RUTGERS L. REV. 423-27 (2002) (arguing that nonenforcement is a rational law enforcement strategy to deter marginal offenders without expending enormous resources on pursuing those who would offend regardless of the law)
163. Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715-48 (2006) (criticizing underenforcement by arguing that it arises when the group in need of enforcement is politically powerless)
164. Gerald L. Neuman, Anomalous Zones, 48 STAN. L. REV. 1197-2006 (1996) (describing the reasons why zones arise in which law is not enforced as a matter of explicit policy)
165. Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 VA. L. REV. 93-117 (2005) (linking underenforcement to the implementation of a larger administrative scheme and arguing that enforcement should be left to agencies rather than private causes of action to ensure that enforcement is governed by a unified strategy given that law cannot reasonably be enforced to its limits)
166. Daniel T. Deacon, Note, Deregulation Through Nonenforcement, 85 N.Y.U. L. REV. 795-99 (2010) (identifying the phenomenon of deregulation through nonenforcement and arguing that it is undesirable because it lacks transparency and obstructs accountability).
167. A core conceptual challenge for formalistic approaches is the fact that enforcement decisions often require judgments about the appropriate relationships among myriad parts of a large statutory code. Immigration enforcement, for example, inevitably implicates tradeoffs across numerous INA provisions—between border and interior enforcement, between immigrants who violate U.S. criminal laws and those who ignore provisions governing who may enter and work in the United States, between targeting immigrants themselves or third parties (like smugglers or employers) who affect the demand for migration, and so on. Whether one concludes that these choices lead to the unlawful suspension of “the law” depends on the level of generality at which one evaluates the Code. At a low level of generality—that is, with a focus on particular Code provisions—such tradeoffs can often resemble suspension, because a part of the Code (often a single provision) will end up being almost entirely unenforced. But if our frame of reference is the INA as a whole, these tradeoffs simply do not entail any failure to enforce the Code as a whole. Recall, for example, our discussion in Part I of IRCA’s employer sanctions regime. While we know that millions of unauthorized immigrants are employed by hundreds of thousands of employers, for years during the Bush Administration, DHS fined fewer than a hundred employers for violating IRCA. Whether one believes that those facts reflect a failure to enforce the law depends on the level of generality at which one defines “the law.” And like these earlier IRCA enforcement decisions, the implementation of the Obama relief policies ultimately will mean that fewer enforcement resources will be directed to certain parts of the Code—the provisions making deportable those who entered without inspection or overstayed the terms of their lawful entry—while more enforcement resources will be directed at other elements of the Code, primarily those that make deportable noncitizens who have committed serious crimes or pose security risks.
168. In the wake of the President’s announcement of DACA, a variety of commentators concluded his actions were unlawful, but they tended to focus their arguments on the institutional form of relief. Zachary Price provided the most detailed effort along these lines, arguing that “individualized” determinations are lawful but “categorical” ones are not. Price, supra note 14, at 675; see also Delahunty & Yoo, supra note 14, at 784-85 (acknowledging the President’s authority to apply equitable concerns in individual cases but contending that such authority does not extend to general, categorical rules like DACA). We explain in Part III why the distinction between “categorical” and “case-by-case” enforcement discretion cannot bear the weight that Price’s argument places on it.
169. For a discussion of the details, see Infra notes 127-133, 150-157 and accompanying text.
170. At the time of this writing, DAPA remains enjoined. As we discuss in more detail in Part IV, a judge in the Southern District of Texas concluded that the Administration violated the Administrative Procedure Act by failing to subject DAPA—a legislative rule, in its view—to notice-and-comment rulemaking. In the spring and summer of 2015, the Fifth Circuit denied the United States’s motion to stay the injunction and held oral arguments on the appeal of the preliminary injunction. In both settings, the Fifth Circuit telegraphed its extreme skepticism of the government’s position, and it therefore seems likely that DAPA either will remain enjoined by the Fifth Circuit or be reviewed by the Supreme Court by 2016. See Infra notes 310-312 and accompanying text. Even if the United States were to lose at each step of the way, it could cure the APA problem by initiating notice-and-comment rulemaking. Provided time remains in this Administration to go through these motions, DAPA is likely eventually to come into effect. To be sure, the analysis by the Texas district court and signals from the Fifth Circuit suggest underlying constitutional discomfort with DAPA. As we explain throughout this Article, we find the constitutional objections to DACA and DAPA to be both weak and ultimately inconsistent with the approach to enforcement discretion the Supreme Court has taken in cases such as Arizona v. United States.
171. Thus far, the United States has succeeded in defending DACA against attack, though neither the arguments animating those lawsuits nor the procedural developments in them is on all fours with the Texas litigation. In another lawsuit in the Fifth Circuit, a district judge in the Northern District of Texas found that ICE agents, but not the state of Mississippi, had standing to challenge DACA. See Crane v. Napolitano, 920 F. Supp. 2d 724, 736, 738, 746 (N.D. Tex. 2013) (holding that ICE agents could not claim a potential violation of their oaths of office as cognizable injury but could establish injury as the result of potential discipline they might face for not complying with DACA). The court ultimately dismissed the agents’ lawsuit for lack of subject matter jurisdiction, however. See Crane v. Napolitano,No. 3:12-CV-03247-O, 2013 WL 8211660, at *2 (N.D. Tex. July 31, 2013) (concluding that the Civil Service Reform Act provides “comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government”), aff’d sub nom. Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015). In a lawsuit brought by Sheriff Joe Arpaio in the D.C. Circuit, a district court has denied a motion for a preliminary injunction against DACA and dismissed the case for lack of Article III standing. See Arpaio v. Obama, 27 F. Supp. 3d 185 (D.D.C. 2014) (noting that Arpaio has no authority to enforce the immigration laws and therefore is not injured by their underenforcement and concluding that his claim of injury stemming from the need to expend resources to address crime and other costs associated with DACA was speculative). The court also telegraphed its skepticism that Arpaio could succeed on the merits, observing that “the challenged deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation’s immigration laws” that has been “conferred by statute” and is therefore “consistent with, rather than contrary to, congressional policy.”
172. DACA, before the President’s November 2014 announcement, Zachary Price offers a heuristic that resembles this OLC approach in the way that it ties the President’s enforcement power to what Congress intends. He emphasizes that the Executive can engage in “priority setting” but not “policymaking.” See Price, Supra note 14, at 761. That said, the limiting principle he devises—the categorical versus individual distinction—does not attempt to excavate substantive priorities from the INA but instead devises a sort of structural device for evaluating enforcement discretion.
173. One of us (Cristina Rodríguez) was Deputy Assistant Attorney General in the Office of Legal Counsel from 2011-2013. The views expressed in this Article are the authors’ alone and do not reflect the views of the Office or of the Department of Justice.
174. Trevor M. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688-1719 (2011) (book review) (noting that thirty-two percent of OLC opinions between the beginning of the Carter Administration and the first year of the Obama Administration “went predominantly against the White House”).
175. OLC grounds its discussion of the enforcement power and the President’s duty under the Take Care Clause in principles articulated by the Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), only one of which relates to agency judgments as to whether “agency resources are best spent on this violation or another” and “whether the agency has enough resources to undertake the action at all.” OLC Memorandum Op., supra note 10, at 10 (citing Heckler, 470 U.S. at 831). In evaluating DAPA, in particular, OLC emphasizes that limited resources did not provide the only reason for DHS’s actions. It noted, “DHS has explained that the program would also serve a particularized humanitarian interest in promoting family unity” and that this justification “appears consonant with congressional policy embodied in the INA.”
176. In the debate over the 2014 policies, defenders of the Administration position have repeatedly emphasized that the President does not have close to sufficient resources to remove all noncitizens who are removable, therefore making it necessary for him to prioritize those enforcement resources he does have. See, e.g., Open Letter from Immigration Law Professors 6 (Nov. 25, 2014), http://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-letter.pdf [http:// perma.cc/N5QU-2GWG]. This argument is unexceptional. But prior to the OLC opinion, a number of supporters of the relief initiatives had argued further that resource constraints provided an appropriate measure and means of constraining executive discretion. The suggestion was that so long as the Executive Branch spent, in accordance with appropriations legislation, all the enforcement resources Congress had provided, the President had faithfully executed his duty to enforce the law.
177. Impoundment might violate Article II, and it would certainly violate statutory law, but nothing short of failure to spend appropriated resources would be unlawful. Cf. Legomsky, Written Testimony, supra note 17, at 10-15 (listing express constraints imposed by Congress and constitutional rights limitations, as well as a general requirement of reasonableness, as limiting principles, but presenting resource constraints as the primary constitutional, structural limit on discretion, noting that “nothing in these new policies will prevent the President from continuing to enforce the immigration laws to the full extent that the resources Congress has given him will allow. As long as he does so, it is impossible to claim that his actions are tantamount to eliminating all limits.”).
178. In 2013, for example, DHS removed almost 438,000 noncitizens. See John F. Simanski, Annual Report: Immigration Enforcement Actions: 2013, U.S. DEP’T HOMELAND SECURITY (Sept. 2014), http://www.dhs.gov/sites/default/files/publications/ois_enforcement_ar_2013.pdf [http://perma.cc/9A7Z-XT44].
179. The unauthorized population alone remains at approximately eleven million, and the number of removals includes many lawfully present noncitizens who otherwise violated a term of the immigration laws. The fact that the Obama Administration has deported more noncitizens each year than any prior presidential administration in American history does not change the reality that it can remove only a small subset of those who are in fact removable. For a discussion of the relative removal rates across administrations, see Marc R. Rosenblum & Doris Meissner, The Deportation Dilemma: Reconciling Tough and Humane Enforcement, MIGRATION POL’Y INST. (Apr. 2014), http://www.migrationpolicy.org/research/deportation-dilemma-reconciling-tough-humane-enforcement [http://perma.cc/FS26-2RLB].
180. OLC Memorandum Op., Supra note 10, at 24 (“[A]ny expansion of deferred action to new classes of aliens must be carefully scrutinized to ensure that it reflects consideration within the agency’s expertise, and that it does not seek to effectively rewrite the laws to match the Executive’s policy preferences, but rather operates in a manner consonant with congressional policy expressed in the statute.”).
181. PATRICK BOLTON & MATHIAS DEWATRIPONT, CONTRACT THEORY (2005)
182. DAVID EPSTEIN & SHARYN O’HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATED POWERS (1999)
183. Mathew D. McCubbins et al., Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243 (1987).
184. For an overview of the historical development of these models in political contexts, see Sean Gailmard, Accountability and Principal-Agent Models, in THE OXFORD HANDBOOK OF PUBLIC ACCOUNTABILITY (Mark Bovens et al. eds., 2014).
185. OLC’s congressional priorities approach thus implicates debates about whether the administrative state merely implements or also interprets legislation. We do not purport to resolve or even address those debates here and observe only that the enforcement power at first glance is less consistent with a view that the Executive has broad interpretive authority than actions undertaken pursuant to express delegations.
186. In discrete instances, Congress has articulated general enforcement guidance, usually in appropriations legislation. For a discussion of the utility and force of such guidance, see Infra notes 141-143 and accompanying text.
187. In its opinion, for example, OLC focuses not on the statutory provisions that would form the basis of removal for potential relief recipients under DAPA, i.e., the provisions that make unauthorized presence a ground of removal. Instead, it draws support for its conclusion that the INA embodies family unity from various provisions that grant relief from removal under specified circumstances that are unlikely to be applicable to those who would be eligible for DAPA. See OLC Memorandum Op., Supra note 10, at 27-28.
188. For a discussion of how this differs from purposive forms of statutory interpretation, see Infra note 148 and accompanying text.
189. OLC Memorandum Op., Supra note 10, at 5.
190. Price, Supra note 14, at 677-97 (arguing for a framework of legislative supremacy and executive judgment and acknowledging that faithful agency does not require“robotic” interpretation but rather judgment and priority setting, rather than policymaking).
191. Supra text accompanying notes 80-83.
192. For further discussion of this point, see Supra Part I.C and infra notes 280-282 and accompanying text.
193. For examples of the guidance issued by various administrations to set these priorities, see Supra note 111 and accompanying text.
194. OLC acknowledges the need for administrations to prioritize, citing the observation in Heckler v. Chaney that decisions about whether to enforce the law require complex judgments that involve factors “peculiarly within [the agency’s] expertise.” OLC Memorandum Op., Supra note 10, at 4 (citing Heckler v. Chaney, 470 U.S. 821, 831 (1985)).
195. See OLC Memorandum Op., Supra note 10, at 10 (citing Department of Homeland Security Appropriations Act of 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251).
196. Department of Homeland Security Appropriations Act of 2013, Pub. L. No. 113-6, div. D, tit. II, 127 Stat. 342, 347 (providing that “funding made available under this heading shall maintain a level of not less than 34,000 detention beds”)
197. H.R. REP. NO. 112-492, (2012) (directing “ICE to intensify its enforcement efforts and fully utilize these resources” rather than rely on alternatives to detention).
198. For example, directing the Administration to prioritize the removal of persons who have committed serious offenses provides no guidance with respect to how to address the millions of other noncitizens who are removable.
199. Some historical examples of the President exercising inherent authority to regulate immigration do exist. As noted in Part I, for example, the President claims authority to grant Deferred Enforced Departure from Article II and his power to conduct foreign relations. See also Cox & Rodríguez, Supra note 7, at 485-92 (highlighting how President Truman appeared to claim inherent executive authority in the management of the Bracero guest worker program). The reach of this inherent Article II authority is beyond the scope of this Article, as we are more concerned with the role the President plays within the domains Congress constructs. Additionally, the inherent authority model has always been marginal in the immigration sphere and has receded over time.
200. King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (“A fair reading of legislation demands a fair understanding of the legislative plan…. If at all possible, we must interpret the Act in a way that is consistent with [that plan].”).
201. This is not, of course, to minimize the well-understood difficulties associated with the concept of legislative intent. For a classic treatment of the problem of collective intent, see Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 INT’L. REV. L. & ECON. 239 (1992).
202. For important work about the distinction between the enacting legislature and the current legislature, see William N. Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331-403 (1991)
203. William N. Eskridge, Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CALIF. L. REV. 613 (1991)
204. William N. Eskridge, & Philip P. Frickey, The Supreme Court, 1993 Term—Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 (1994).
205. Take, for example, the term of art “aggravated felony.” Various consequences turn on whether a noncitizen has been convicted of a crime that falls into this category, but whether a federal or state offense constitutes an aggravated felony is far from straightforward. This has been the subject of numerous cases of statutory interpretation within the courts of appeals and at the Supreme Court. Resolving the interpretive questions at stake in those cases will for some interpreters involve inquiring into statutory purpose. For a discussion of the development of this statutory ground of removal, see LEGOMSKY & RODRÍGUEZ, Supra note 83, at 598-99.
206. In this sense, the congressional priorities approach and our critique of it are also orthogonal to the analysis required of courts under the APA to determine whether agency action has been arbitrary or capricious, an abuse of discretion, or otherwise “not in accordance with law.” See 5 U.S.C. § 706(2)(A) (2012) (directing courts to set aside agency action under certain circumstances).
207. OLC in a sense recognizes this problem, noting: “These limits, however, are not clearly defined. The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is ‘faithful[]’ to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules.” OLC Memorandum Op., Supra note 10, at 5. But whereas we would abandon the effort to draw substantive limits, OLC does its best to find them.
208. Importantly, OLC applied a sort of “lesser included” standard to evaluating the relationship of DAPA to the statute.
209. Margulies, Supra note 14 (characterizing DAPA as belonging in the third category of Justice Jackson’s famous framework for evaluating executive authority, or the lowest ebb of executive authority in light of Congress’s regulation, and concluding that the policy’s “unilateral grant of these immigration benefits defies Congress’s will”)
210. Price, Supra note 112 (“[T]he constitutional architecture supports an important background norm that executive officials still must seek to effectuate statutory policies.”)
211. Peter Margulies, Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers, 94 B.U. L. REV. 105-111 (2014) (evaluating DACA and concluding that it is inconsistent with Congress’s will in passing the INA, where Congress “expressly provided only limited avenues for the exercise of discretion and impliedly offered room for additional discretion only on a case-by-case basis”).
212. Martin, Supra note 14 (arguing that OLC’s invocation of cancellation was “remarkably misleading” because Congress tightened the standards for cancellation in 1996 and made it available as relief only in cases in which removal would impose “exceptional and extremely unusual hardship” and because Congress capped the annual number of cancellations at 4,000, making relief far from immediate).
213. Michael W. McConnell, Why Obama’s Immigration Order Was Blocked, WALL STREET. J. (Feb. 17, 2015), http://www.wsj.com/articles/michael-mcconnell-why-obamas-immigration-order-was-blocked-1424219904 [http://perma.cc/KD5L-DN5N] (arguing that “DAPA dispensed with” the statutory requirements that “undocumented-immigrant parents of U.S. citizens … wait until the child turns 21, and then … leave the country for 10 years before applying for a change of immigration status on account of that child”).
214. Margulies, Supra note 14 (arguing that the INA sends a “clear signal to foreign nationals: Entering the US without inspection and having kids is not a ticket to lawful residence or any of the benefits that lawful residence provides” and that “[t]he OLC memo misses this clear legislative signal”).
215. David M. Herszenhorn, Senate Blocks Bill for Young Illegal Immigrants, N.Y. TIMES (Dec. 18, 2010), http://www.nytimes.com/2010/12/19/us/politics/19immig.html [http://perma.cc/4894-S3N3].
216. The DREAM Act is a bill that has been introduced in Congress repeatedly that would give permanent resident status to unauthorized immigrants who were brought to the United States as children, completed two years of college or U.S. military service, and met other requirements. For an argument that DACA implements the DREAM Act through executive fiat, see Delahunty & Yoo, Supra note 14, at 787-92.
217. Interestingly, the OLC opinion does not itself even make an argument that DACA is consistent with congressional priorities reflected in the INA. The opinion asked only that the Office formally evaluate the legality of DAPA and the proposed relief program for the parents of DACA recipients. In a footnote discussing the Office’s earlier oral advice regarding DACA, however, the memorandum suggests that OLC might have had in mind a very different rationale for DACA itself. One possibility is that blamelessness—the fact that young migrants often bear no responsibility for their unauthorized status—implicates humanitarian and constitutional values that justify the exercise of discretion in DACA. Blamelessness connects to anti-inheritance principles reflected in the Fourteenth Amendment and other constitutional provisions. See Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. REV. 54-76 (1997) (discussing the Constitution’s rejection of titles of nobility)
218. Cristina M. Rodríguez, The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363-1365 (2009) (articulating an anti-inheritance principle and arguing that the Citizenship Clause of the Fourteenth Amendment “represents our constitutional reset button” by placing “all people, regardless of ancestry, on equal terms at birth, with a legal status that cannot be denied them”). It also connects to conceptions of luck egalitarianism prominent in political philosophy.
219. Richard J. Arneson, Luck Egalitarianism—a Primer, in RESPONSIBILITY AND DISTRIBUTIVE JUSTICE 24 (Carl Knight & Zofia Stemplowska eds., 2011)
220. Elizabeth S. Anderson, What Is the Point of Equality?, 109 ETHICS 287-288 (1999) (criticizing luck egalitarian thought and arguing that the point of equality is to address oppression, not to “eliminate the impact of brute luck from human affairs”). Moreover, the idea of blamelessness played an important role in the famous immigration case Plyler v. Doe, 457 U.S. 202 (1982), which struck down Texas laws restricting unauthorized children’s access to the public schools. In concluding that the laws violated the Fourteenth Amendment, the Court emphasized the blamelessness of the unauthorized children for their immigration status. Plyler, 457 U.S. at 220-21
221. Korematsu v. United States, 323 U.S. 214, 243 (1944) (Jackson, J., dissenting) (“Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.”). David Martin explains the legality of DACA in these terms, emphasizing that it “covers only a small percentage of removable aliens and … shields only those not culpable for the initial immigration law violation.” Martin, supra note 14. Note that these justifications do not stem from congressional priorities.
222. OLC’s rejection of deferred action for the parents of DACA recipients suffers from this same problem. See, e.g., Steve Legomsky, Why Can’t Deferred Action Be Given to Parents of the Dreamers?, BALKINIZATION (Nov. 25, 2014, 6:30 PM), http://balkin.blogspot.com/2014/11/why-cant-deferred-action-be-given-to.html [http://perma.cc/C272-23VF].
223. For a representative example exploring what is to be gained from family immigration, see Kerry Abrams, What Makes the Family Special?, 80 U. CHI. L. REV. 7 (2013).
224. For a collection of sources discussing the U.S. immigration system’s prioritization, as well as denigration, of family ties, see LEGOMSKY & RODRÍGUEZ, Supra note 83, at 269 n.10.
225. Adam B. Cox & Eric A. Posner, Delegation in Immigration Law, 79 U. CHI. L. REV. 1285-1326 (2012) (discussing U.S. immigration law’s focus on family-based immigration and its connection to ideas about immigrant integration as well as racial and ethnic exclusivity).
226. Price, Supra note 14, at 677.
227. We thank Daryl Levinson for this formulation of our argument.
228. Infra notes 226-229 and accompanying text (discussing scholarly debates over presidential administration).
229. For further discussion of who should be understood as the principal within the Executive Branch, see Infra notes 262-264 and accompanying text.
230. In his rejection of the independent counsel statute as a gross intrusion into the President’s power to control prosecutors within the Executive Branch, Justice Scalia offers a vivid picture of the sort of judgments prosecutors routinely make—a picture that does not square with a congressional priorities model. He writes: Almost all investigative and prosecutorial decisions—including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted—involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. Another preeminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary…. In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. Morrison v. Olson, 487 U.S. 654, 707-08 (1988) (Scalia, J., dissenting).
231. Some critics of the President’s relief initiatives believe that decisions by line-level prosecutors are an inapposite comparison. Zachary Price, for example, argues that those decisions are different in kind because they are made on an individualized basis, while the decision to establish DACA or DAPA involves a “categorical” judgment by high-level agency officials (or even by the President himself). See Price, supra note 14, at 674; see also Price, supra note 112. For reasons we explore in Part III, we do not believe this distinction between individual and categorical judgments can be sustained. And for reasons we explore in this Part, we believe there to be value in executive branch policymaking through enforcement.
232. Cox & Rodríguez, Supra note 7, at 469-71.
233. Supra note 142 and accompanying text (discussing the detention bed mandate). In addition, the ever-increasing appropriation of funds for DHS generally reflects congressional efforts to shape enforcement.
234. Meissner et al., Supra note 63, at 2-9 (documenting two decades of “sizeable, sustained budget requests and appropriations made by the Executive Branch and Congress … under the leadership of both parties” and emphasizing that the U.S. government spends more on federal immigration enforcement than all other federal law enforcement agencies combined).
235. Ashley Parker, House and Senate Prepare Measures To Keep Homeland Security Funded, N.Y. TIMES (Feb. 26, 2015), http://www.nytimes.com/2015/02/27/us/house-and-senate-near-differing-plans-to-avoid-homeland-security-shutdown.html [http://perma.cc/K8RS-BNTS].
236. Unconstitutionality of Obama’s Executive Actions on Immigration: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 1-3 (2015) (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary) (introducing a hearing featuring testimony opposed to the President’s executive actions and accusing the President of “one of the biggest constitutional power grabs ever” and “rewriting the laws when [he] can’t convince Congress to change them”). At the same time, congressional complaints about the President’s policymaking through enforcement have transcended partisan dynamics—though the charge of fecklessness may be less frequently lobbed at Republican Presidents (despite their examples of underenforcement) and more frequently aimed at Democrats (despite their zealous enforcement). Tellingly, however, Congress has never responded by acknowledging, much less addressing, the underlying “causes” of de facto delegation.
237. The argument that historical executive branch practices qualify as constitutional precedents often entails the claim that those practices reflect a legal convention that should be accorded constitutional status. The “historical gloss” literature is founded on the idea that discrete exercises of presidential power, acquiesced in over time by Congress, become constitutional precedents that support the continued legality of that exercise of presidential power—even in the face of new resistance from Congress. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411 (2013) (exploring the significance of congressional acquiescence and arguing that it is necessary for a practice to achieve constitutional status but also exploring the limits and dangers of identifying or claiming acquiescence). For a discussion of the difficulties of using historical practice in this way
238. Alison L. LaCroix, Historical Gloss: A Primer, 126 HARV. L. REV. F. 75 (2013), which criticizes Bradley and Morrison, in particular, for failing to account for the role of courts as “gloss producers.”
239. Our model also differs from the claim made in scholarly and popular accounts that robust and independent presidential action can be justified during times of polarization, when Congress fails to fulfill its own constitutional responsibilities or obstructs policymaking. See David E. Pozen, Self-Help and the Separation of Powers, 124 YALE L.J. 2-11 (2014)
240. Cass R. Sunstein, Robert Walmsley Univ. Professor, Harvard Univ., Keynote Address at the University of Chicago Legal Forum: Partyism (Nov. 7, 2014), http://ssrn.com/abstract=2536084 [http://perma.cc/U9PT-THYT] (arguing that in the face of partyism— or deep prejudice against members of the opposing party—vast delegations and a receptivity to the Chevron principle offer good ways to ensure ongoing problem solving by government). While we would agree that a two-principals model could be especially useful in such circumstances, we also believe the model’s value transcends polarized contexts, for reasons we explore infra Part II.C.2. In addition, defining what constitutes obstruction seems to us a fraught enterprise.
241. Thank you to Dan Ho for pushing us to clarify this point.
242. As should be clear from everything we have said thus far, we do not believe this normative question can be collapsed into a formalistic inquiry into whether the President’s exercise of the enforcement power ceases to be “executive” and becomes “legislative.” To be sure, there is a long intellectual tradition, dating at least to Montesquieu and Locke, advancing the idea that certain forms of power belong to certain types of government actors. For a leading but somewhat forlorn defense of this view, see Jeremy Waldron, Separation of Powers in Thought and Practice?, 54 B.C. L. REV. 433-467 (2013), which claims, “Even if the principle is dying a sclerotic death, even if it misconceives the character of modern political institutions, still it points to something that was once deemed valuable—namely, articulated government through successive phases of governance each of which maintains its own integrity ….” Modern administrative law has largely moved us past this formalistic idea of dividing power according to its type.
243. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Laws, 150 U. PA. L. REV. 603-606 (2001) (turning attention away from constitutional separation of powers and toward consideration of how governmental power is shared by a “large and diverse set of government decision-makers”)
244. Memorandum from Walter Dellinger, Office of Legal Counsel, to the Gen. Counsels of the Fed. Gov’t (May 7, 1996) (discussing cases such as Bowsher v. Synar, 478 U.S. 714 (1986), that identify congressional aggrandizement, or congressional efforts to formally exert executive powers), reprinted in 63 LAW & CONTEMP. PROBS. 514 (2000).
245. The “purpose” question is quite under-theorized in Supreme Court precedents. Much as it does in the federalism context, the Court gestures toward abstract values such as protecting liberty and preventing the rise of tyranny before it elaborates the particular power arrangements it believes the Constitution has erected to advance those values. However, the connection between the constitutional allocations and the values is typically assumed rather than analyzed. See, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2608-09 (2011)
246. Mistretta v. United States, 488 U.S. 361, 380-81 (1989) (“This Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers … that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty. Madison, in writing about the principle of separated powers, said: ‘No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.’” (citations omitted) (quoting THE FEDERALIST NO. 47, at 324 (James Madison) (J. Cooke ed., 1961)))
247. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (stating that the goal of separation of powers is to “diffuse[] power the better to secure liberty”).
248. In rejecting the idea that there is some single, platonic separation-of-powers principle, we share much in common with John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939 (2011), which argues that there is no freestanding principle of the separation of powers. Of course, we differ a good deal as to the reasons for concluding that no such single principle exists, as well as on the implications that flow from its absence.
249. For a discussion of this dichotomy between power and constraint, see Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 COLUM. L. REV. 515 (2015).
250. Gillian E. Metzger, The Constitutional Duty To Supervise, 124 YALE L.J. 1836, 1891-1897 (2015) (distinguishing between political or electoral accountability and legal accountability, or the concept that “all exercises of governmental power be subject to constitutional limits that the political branches lack power to alter through ordinary legislation”)
251. Michaels, Supra note 179, at 540-557 (exploring the civil service as a counterweight to the political leadership of agencies and arguing that the former provides a form of constraint that helps ensure independent and apolitical decision making).
252. Compare POSNER & VERMEULE, supra note 114 (arguing that in the modern administrative state, the Executive governs subject to weak or nonexistent legal constraints), with BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC 6 (2010) (emphasizing the danger of a “runaway presidency”).
253. This is not to say that the immigration enforcement bureaucracy has not been zealous in its mission. Immigrants’ rights advocates would charge the Obama Administration, in particular, with overenforcement. But this charge often obscures the complexities of institutional context. The prioritization memos issued by various administrations may not have had as significant an impact as their political authors might have liked. As we explore in Part III, the Obama relief policies are themselves a recalibration of enforcement policy to capture that fact. Within the Executive Branch, the push and pull between political appointees and the civil service ensures that the exercise of the enforcement power will itself consist of mixed goals and imperfect results.
254. Another example of this dynamic can be found in the resistance by former executive branch officials from the first Bush and Clinton Administrations to the mandatory detention provision Congress added to the Code in 1996 for noncitizens in removal proceedings on the basis of having committed an aggravated felony or violation of certain other grounds of removal. When the American Civil Liberties Union took a due process challenge to this provision all the way to the Supreme Court in 2003, numerous former INS officials filed an amicus brief emphasizing how the provision constrained executive discretion to determine whether a noncitizen in removal proceedings could be released on bond in harmful and counterproductive ways. See Brief for T. Alexander Aleinikoff et al. as Amici Curiae Supporting Respondent at 4-14, Demore v. Kim, 538 U.S. 510 (2003) (No. 01-1491).
255. David Pozen calls for treating certain “remedial” measures taken by the Executive Branch as forms of norm-based self-help that advance separation-of-powers goals, rather than as selfaggrandizing, and he emphasizes the value of self-help during times of “agonistic” and “dysfunctional” government. See Pozen, Supra note 174, at 7-11. For reasons explained infra notes 189-190 and accompanying text, we do not regard the two-principal dynamic as depending on polarized or dysfunctional government. Rather, we see it as vital under ordinary circumstances, too, when legislation is either difficult to achieve or when Congress has chosen inaction for other reasons.
256. See infra notes 226-229 and accompanying text (discussing the literature concerning presidential administration and the value and function of presidential control over agency policy, including by emphasizing the relative accountability of the President). See generally Andrias, Supra note 52, at 1090-1094 (highlighting the accountability of the President in defending his and his political appointees’ control over enforcement judgments).
257. The concept of “accountability” merits some unpacking, because it can come in the form of being answerable to the political process, or from the numerous internal constraints that operate within the Executive Branch and through the application of judicial review over agency action. For a nuanced discussion of forms of accountability, see Metzger, Supra note 180, at 1886-97. Given the numerous internal constraints on the Executive Branch that exist, including competition among agencies in shared regulatory space, centralized White House review of agency action, the presence of lawyers across the branch assigned the function of ensuring executive action comports with the law, and institutions such as the Inspectors General, we reject the Posner and Vermeule formulation of the Executive as “unbound.”
258. POSNER & VERMEULE, Supra note 114 (describing the Executive’s power as largely unconstrained by legal mechanisms)
259. JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENT AFTER 9/11, at 83 160 (2012) (discussing the interagency process, the Inspectors General, and the role of lawyers as forms of constraint). The ICE Agent’s Union, and the lawsuit it has brought challenging DACA, represents one potential example of internal constraint, as do the different and generally enforcement-oriented preferences of the bureaucracy. See Rodríguez, Supra note 95, at 2110 (discussing the role of institutional culture within agencies as part of a coherent picture of “federal” priorities and preferences). Whether there should be more and better internal constraints may be worth debating, and scholars such as Neal Katyal and Gillian Metzger have initiated important inquiries along these lines, but we would be wrong to think of the Executive as a necessarily and truly dangerous branch.
260. Neal Kumar Katyal, Toward Internal Separation of Powers, 116 YALE L.J. POCKET PART 106, 106-110 (2006) (arguing for the implementation of a separation-of-powers principle within the Executive Branch, given the scope of the President’s power)
261. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 EMORY L.J. 423-425 (2009) (calling for paying close attention to internal administrative design and analyzing which structures serve as the most effective checks on executive power).
262. Stephen M. Griffin, LONG WARS AND THE CONSTITUTION 5 (2013).
263. For a similar argument in the federalism context, see Roderick M Hills., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 16-18 (2007).
264. In this sense, our claims about the value of two principals differ from some recent accounts of the separation of powers and politics. See Pozen Supra note 174
265. Sunstein, Supra note 174.
266. For a classic statement of three different forms of separation of powers that commentators often conflate, see Waldron, Supra note 176, at 438-442, which distinguishes among separation of powers, checks and balances, and dispersal of power generally and argues that separation of powers is, above all, a matter of “articulated governance.”
267. In Part III, we elaborate on this last point in particular and highlight how dynamics internal to the Executive Branch can serve as sources of constraint. This institutionally grounded conception of separation of powers serves as a counterpoint to an ascendant line of thinking that rejects the Madisonian theory of separation of powers and emphasizes instead that, to the extent constraints exist on the branches, they come from the “separation of parties,” or divided government. See POSNER & VERMEULE, Supra note 114, at 4 (rejecting altogether the notion that a legal concept of separation of powers does any work and arguing that constraints on the Executive come in the form of popular politics)
268. Bradley & Morrison, Supra note 173, at 438-447 (arguing that the Madisonian theory of checks and balances on which theories of congressional acquiescence to executive branch practice are based no longer accurately describes the relationship between the branches or captures the realities (and difficulties) of legislation)
269. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311-2347 (2006) (arguing that during times of cohesive and polarized politics, competition between the branches will vary widely and may disappear altogether if the branches are controlled by officials from the same party). These theories quite successfully dismantle the most abstract and starry-eyed versions of the Madisonian vision. But because their foil is a theory, they operate at a level of institutional abstraction that prevents them from appreciating some of the ways in which institutional constraints within government play a large role in the wielding of the enforcement power— dynamics our immigration history helps to bring to light. For an account of internal and external constraints on the Executive Branch that captures some of these institutional realities in the war powers and national security contexts
270. GOLDSMITH, Supra note 187.
271. Our thinking along these lines is ultimately part of a moment in the separation-of-powers scholarship that seeks to understand the nature of power by appreciating how it plays out in practice. Trevor Morrison and Curtis Bradley, for example, call for attention to the role that history plays in the construction of executive power and argue that historical practice can render a particular arrangement constitutional in status. See Bradley & Morrison, Supra note 173
272. Aziz Z. Huq, Removal as a Political Question, 65 STAN. L. REV. 1, 45-76 (2013) (arguing that the scope of the presidential removal power should be seen as a political question, in part because of the political-science scholarship suggesting that the removal power does not serve as a constraint on the bureaucracy, which renders judicial intervention in agency design counterproductive)
273. Aziz Z. Huq, The Negotiated Structural Constitution, 114 COLUM. L. REV. 1595-1686 (2014) (arguing that the branches negotiate their institutional interests with one another and that courts are not well placed to monitor these “intermural deals,” which instead should be policed for bad outcomes by elected officials)
274. Pozen, Supra note 174, at 10 (criticizing the separation-of-powers scholarship that turns away from “legal modes of reasoning” and arguing that unwritten, quasi-legal norms shapeand constrain interactions across the U.S. government, producing both “retaliation” as well as cooperation). Though we differ in our conclusions about the nature of executive power and the proper role of Congress and the courts in constraining it, all of these works share an understanding of interbranch relationships as constructed over time.
275. In an important recent work on presidential war powers, for example, Mariah Zeisberg develops a “relational” model of separation of powers and rejects the idea that the branches must adhere to “determinate textual meaning. MARIAH ZEISBERG, WAR POWERS: THE POLITICS OF CONSTITUTIONAL AUTHORITY 7-19 (2013).
276. Whereas in this Part we focus on why the Obama Administration relief initiatives serve rather than undermine structural separation-of-powers values, in Part IV we consider what forms of institutionalizing discretion might present constitutional concerns, and we enumerate some of the external sources of constraint that exist.
277. Price, Supra note 14, at 674-675.
278. Anil Kalhan similarly argues that DAPA helps the DHS ensure that “its personnel heed important rule-of-law values such as consistency, transparency, accountability, and nonarbitrariness.” Anil Kalhan, Deferred Action, Supervised Enforcement Discretion, and the Rule of Law Basis for Executive Action on Immigration, 63 UCLA L. REV. DISCOURSE 58-85 (2015). Though a deep analysis of what is meant by rule-of-law values is beyond the scope of this Article, we believe consistency rather than uniformity captures what we can realistically expect from complex enforcement efforts. For a discussion of the difference between uniformity and consistency
279. Cristina M. Rodríguez, Uniformity and Integrity in Immigration Law: Lessons from the Decisions of Justice (and Judge) Sotomayor, 123 YALE L.J. F. 499 (2014), http://www.yalelawjournal.org/forum/uniformity-and-integrity-in-immigration-law [http://perma.cc/7NFN-U7CF]. In addition, we emphasize perceptions of fairness by the regulated public, rather than nonarbitrariness, because we are reluctant to describe the differentiated results of a decentralized, diffused decision-making process as necessarily arbitrary.
280. In view of the futility of substantive limits, another approach to understanding the enforcement power could be to reject the idea that any constitutional limits exist or can be reliably determined. We might adopt the perspective of Eric Posner and Adrian Vermeule and accept that the only real limits on executive power come from politics and public opinion. See POSNER & VERMEULE, Supra note 114. As we suggest throughout this Article, we reject their descriptive account that legal rules and practices fail to constrain the modern Executive. And we share at least one assumption with the critics of the Obama relief initiatives—that the exercise of executive power ought to be disciplined as the result of legal and constitutional considerations.
281. Some scholars have attempted to characterize DACA and DAPA as a run-of-the-mill action by the President, consistent with past practices. See Gilbert, Supra note 18. As we explained in Part I, while we think the initiatives are consistent with the history of executive branch policymaking through the exercise of the enforcement power, many of the precedents typically cited for this claim were not of the same scale as DACA or DAPA, and those that were can be characterized as providing only transitional relief. We believe what the Administration has done is novel and simultaneously an improvement on the status quo and imperfect (for reasons we explain infra Part IV) but not constitutionally defective.
282. Price, Supra note 14. In describing the appropriate use of the enforcement power, Price emphasizes that the Executive may engage in priority setting within the parameters of statutory policy but that it may not engage in policymaking.
283. Leading defenders of the Administration’s policy have emphasized that the memoranda detailing the policy and providing instructions to line-level adjudicators emphasize that they retain discretion to deny deferred action even to those who meet the eligibility criteria. See Legomsky, Written Testimony, Supra note 17, at 71 (noting that the memoranda governing both DACA and DAPA “are filled with clear, careful, explicit, repeated commands to officers to make individualized, case-by-case discretionary judgments”). Even if it were not the case that adjudicators retained discretion beyond application of the eligibility criteria, the adjudications still would be individualized. The distinction between individual and categorical judgments ultimately amounts to a question of framing.
284. Frederick Schauer, PROFILING, PROBABILITIES, AND STEREOTYPES (2006) (explaining the conceptual impossibility of “individualized” decision making, if an individualized decision is defined as one that does not permit the decision maker to make any group generalizations).
285. Johnson, DACA and DAPA Memo, Supra note 108, at 4.
286. See Defendant’s Emergency Expedited Motion to Stay the Court’s February 16, 2015 Order Pending Appeal and Supporting Memorandum at 10, Texas v. United States, No. 1:14-C254, renumbered No. B-14-254 (S.D. Tex. Feb. 23, 2015); OLC Memorandum Op., supra note 10, at 8-9. In describing DACA and DAPA as preferring rules over standards, we do not take a position on the question of whether DAPA constitutes a legislative rule for the purposes of the APA and as understood within the administrative law doctrine. We engage with that issue more fully in Part IV. Here, we make a legal-theory point by using “rules” as compared to “standards” to describe the structure of decision making. The desire to defend against the APA claims in the Texas lawsuit has detracted from candid discussion of what the Administration sought to accomplish with DACA and DAPA as a matter of executive branch organization.
287. See infra text accompanying notes 309-318 (discussing, and rejecting, the view that a more rule-bound regime of prosecutorial discretion might run afoul of the APA’s “legislative rule” jurisprudence).
288. In many decision-making structures that mix rules and standards-including DACA and DAPA—the relative importance of different criteria cannot be determined as a matter of pure logical deduction. For example, it would have been fully consistent with the formal decision-making rules for DACA adjudicators to have denied relief, as a matter of discretion, to half of all otherwise-eligible applicants. And certainly other immigration relief programs, such as cancellation of removal (which also mixes rules and discretion), have much higher rates of discretionary denial. It is interesting to note, however, that a pretty regular pattern does seem to emerge in legal decision-making contexts that combine a complex set of eligibility criteria with a backend grant of discretionary authority: the rule-like stage seems to reduce the role discretion plays. See, e.g., Adam B. Cox & Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Jurisprudence, 75 U. CHI. L. REV. 1493 (2008) (testing empirically the constraining power of rules in one example of these sorts of mixed decision-making structures). Asylum determinations are a good illustration of this phenomenon. Adjudicators must determine whether an applicant meets the legal definition of refugee or otherwise falls within any legal bars to asylum. But even if an applicant satisfies the criteria for asylum, an adjudicator still retains the discretion to deny an application for equitable reasons. In practice, the existence of the eligibility criteria has disciplined the inquiry and narrowed the authority of adjudicators; only a small percentage of asylum applicants who satisfy the eligibility criteria are denied asylum as a matter of discretion.
289. Price, Supra note 14, at 759-61. As noted above, this claim is sometimes cast as a formalist argument about the separation of powers: the idea is that the distinction between rules and standards maps onto the constitutional division between “legislative” authority under Article I and “executive” authority under Article II. See supra notes 176-178 and accompanying text.
290. Magill, Supra note 176, at 621.
291. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 809-812 (7th ed. 2013).
292. See United States v. Salerno, 481 U.S. 739 (1987). But see Demore v. Kim, 538 U.S. 510 (2003) (accepting the constitutionality of such categorical rules in at least some immigration detention contexts).
293. For an important early effort to work through this question, see generally JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1985).
294. On the tradeoffs between rules and standards, see, for example, Frederick Schauer, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991)
295. Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983)
296. Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. LEGAL STUD. 257 (1974).
297. Another conventional tradeoff between rules and standards is that rules are often more costly to specify ex ante and less costly to apply ex post. See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557-563 (1992). This tradeoff is also important to understanding why DACA and DAPA were likely structured the way they were, because they place the costly process of ex ante specification in the hands of high-level political officials rather than line-level bureaucrats.
298. Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 YALE L.J. 1032-1078 (2011) (noting the coordination costs of the diffusion of authority within the bureaucracy but suggesting the countervailing value of promoting independence by empowering the civil service).
299. See Immigration and Nationality Act § 103, 6 U.S.C. § 202 (2012) (“The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following: … (5) Establishing national immigration enforcement policies and priorities.”); 8 U.S.C. § 1103(a)(1) (2012) (“The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens ….”). There is some irony in the fact that critics are arguing that enforcement discretion cannot constitutionally be exercised by the statutory delegatee but instead must be exercised by a set of subordinate officials. We explore the radical nature of this claim about the structure of the administrative state below.
300. Though the President announced the DAPA initiative, Secretary Johnson issued the memoranda governing the program. See Supra notes 108, 111 and accompanying text. The White House clearly was involved in the formulation of DAPA, as evidenced by the fact that the OLC opinion analyzing the program’s legality was addressed both to the Secretary and to the White House Counsel.
301. LC Memorandum Op., Supra note 10, at 1. Though we speak in terms of the President’s authority, therefore, the enforcement judgments we describe throughout the Article are clearly the product of collaboration within the Executive Branch, with the Secretary of Homeland Security and the leadership of DHS playing the key role in mediating presidential preferences and the management of the bureaucracy.
302. This confidence that Secretary Johnson will not reverse course leads some to believe that the relief is thereby more durable than ordinary decisions to defer prosecutions—a view that leads some to (wrongly) characterize the relief as a grant of “legal status.” See infra notes 274-275 and accompanying text.
303. One particularly salient set of examples is the 1996 amendments to the INA that eliminated the authority that immigration judges had to grant relief from deportation. As we explained in 2009, these changes took place against a status quo in which the enforcement arm of the INS (now DHS) had considerable discretion about whom to place in proceedings in the first place. Rather than squeezing out discretion, the 1996 amendments simply consolidated discretion in the hands of enforcement officials by removing it from the hands of the somewhat-more-independent immigration judges. See Cox A & Rodríguez A, Supra note 7, at 517-19. A similar story can be told about the slow death of a procedure, known as judicial recommendation against deportation (JRAD), which permitted an Article III judge to grant relief from deportation in the course of adjudicating a federal criminal case.
304. Some constitutional constraints surely exist on the organization and staffing of the bureaucracy, though none of the constraints clearly required by the Constitution, as described by judicial doctrine, apply to the sorts of choices we identify here. See Magill & Vermeule, Supra note 220, at 1038-1041 (discussing constitutional rules that constrain agency structure, such as the Constitution’s Appointments Clause and the law governing removal, as well as the demands of procedural due process that require hearings or individualized processes in certain circumstances).
305. See Morton, Exercising Prosecutorial Discretion, Supra note 96, at 4 (referencing “the person’s length of presence in the United States”; “the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States”; “whether the person has a U.S. citizen or permanent resident spouse, child, or parent”; and “the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants”).
306. This highlights another puzzling aspect of the arguments from congressional intent we criticized in Part II: the Morton Memos could have been subjected to pretty much the same wooden congressional-priorities critique that has been leveled against DACA and DAPA. Many of the Morton Memos’ criteria are not clearly supported by the text of the INA, and some of them are in tension with discrete provisions of the Code. Yet many who criticize some or all of the President’s proposals for relief express no doubts about the legality of the sorts of prioritization policies represented by the Morton Memos. See, e.g., OLC Memorandum Op., Supra note 10, at 7-11 (explaining how the prioritization policy announced by DHS (now known as the “Johnson Memo”) fits comfortably within the President’s enforcement discretion). Even the Texas district court that recently enjoined both DACA and DAPA took pains to emphasize its view that the agency has unreviewable discretion to prioritize its enforcement efforts and resources, essentially accepting the prioritization scheme set out in the memos Secretary Johnson issued to replace the Morton Memos. See Texas v. United States, No. 1:14-CV-254, renumbered No. B-14-254, slip op. at 68-70 (S.D. Tex. Jan. 30, 2015).
307. In a notable exception, a group of ICE officers in the Houston field office contested the new prosecutorial discretion policy, arguing that it created a “secretive review process.” The national ICE union eventually passed a no-confidence motion citing ICE Director John Morton and Assistant Director Phyllis Coven. See Marjorie S. Zatz & Nancy Rodriguez, The Limits of Discretion: Challenges and Dilemmas of Prosecutorial Discretion in Immigration Enforcement, 39 LAW & SOC. INQUIRY 666-678 (2014). Some members of Congress also, predictably, criticized the memos
308. Rosenblum Supra note 3, at 5 n. 13, though the concerns did not get widespread traction.
309. Bill Ong Hing, The Failure of Prosecutorial Discretion and the Deportation of Oscar Martinez, 15 SCHOLAR 437 (2013)
310. Julia Preston, Deportations Under New U.S. Policy Are Inconsistent, N.Y. TIMES, Nov. 12, 2011, http://www.nytimes.com/2011/11/13/us/politics /president-obamas-policy-on-deportation-is-unevenly-applied.html [http://perma.cc/EE24 -VQNJ]
311. Holding DHS Accountable on Prosecutorial Discretion, AM. IMMIGR. LAW. ASS’N & AM. IMMIGR. COUNCIL (Nov. 2011), http://www.aila.org/content/default.aspx?docid=37615 [http://perma.cc/2EWM-G9Y7].
312. ICE Prosecutorial Discretion Initiative: Latest Figures, TRANSACTIONAL REC. ACCESS CLEARINGHOUSE 1 (Apr. 19, 2012), http://trac.syr.edu/immigration/reports/278 [http:// perma.cc/CYR2-AMS6] (stating that less than one percent of pending cases were closed by the end of September 2011)
313. Julia Preston, Deportations Continue Despite U.S. Review of Backlog, N.Y. TIMES, June 6, 2012, http://www.nytimes.com/2012/06/07/us/politics /deportations-continue-despite-us-review-of-backlog.html [http://perma.cc/XU74-ZZT3] (stating that fewer than two percent were closed by June 6, 2012). The low rate of closure was exacerbated by delays in background checks, as well as by the fact that a fair number of respondents declined offers of administrative closure, presumably because they had pending claims for more permanent forms of relief.
314. Thomas J. Miles & Adam B. Cox, Does Immigration Enforcement Reduce Crime? Evidence from “Secure Communities,” 57 J.L. & ECON. 937-956 fig.4 (2014).
315. Johnson, Secure Communities Memo, Supra note 101, at 1 (“The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens ….”).
316. To be clear, there are some longer-term enforcement trends that bridge the release of the Morton Memos. The fraction of deportees with a criminal record had been rising since 2008, and this trend continued after the memos’ release.
317. It is certainly possible that, after a number of years, the Morton Memos would have been institutionalized in supervisory or disciplinary strategies so that they might ultimately have had some effects on enforcement. But as we explain below, we are very skeptical that any such strategies could have precipitated a shift that comes close to matching the effects of DACA and what would likely result from the implementation of DAPA—the guarantee that millions of unauthorized immigrants would be immune from removal for defined periods of time with the likelihood of indefinite continuation into the future.
318. L1 refers to noncitizens convicted of aggravated felonies, such as murder or rape, or two or more felonies. L2 refers to noncitizens convicted of any felony that is not an aggravated felony or three or more misdemeanors. L3 refers to noncitizens convicted of one or two misdemeanors. Noncriminal refers to noncitizens who have no criminal conviction but have civil violations of immigration law, such as overstaying a visa.
319. Another, perhaps more cynical, view of the Morton Memos is that they were motivated largely by politics, or the desire to curry favor with immigrant advocacy and Latino communities, rather than by a genuine desire to change the types of unauthorized migrants being deported from the United States. On this view, it should also be no surprise that the Morton Memos had little effect. Regardless of their true aim (or whether it is even possible to characterize them as having a single aim), opponents of the Administration’s deportation policies were able to use the Morton Memos’ “failure” as a focal point for messaging and organizing that helped create the political conditions that gave rise to DACA in 2012. See supra text accompanying notes 101-102.
320. This question of whether and how to control line-level prosecutors, and even the U.S. Attorneys themselves, has been a perennial one in analyses of federal criminal law. See, e.g., Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L.J. 1420-1470 (2008) (analyzing a discretion memorandum issued by Attorney General John Ashcroft and concluding that it established no enforcement mechanism and left space for flexible application in its language, and that the lack of sufficient numbers of attorneys in Main Justice in the District of Columbia to monitor the thousands of local line attorneys in field offices thwarted the memorandum’s centralizing goal)
321. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1562-1563 (1981) (arguing that guidelines to prosecutors need to be “specific enough to provide genuine guidance when applied to a particular set of facts”).
322. Press Release, ICE Union, ICE Agent’s Union Speaks Out on Director’s “Discretionary Memo”; Calls on the Public To Take Action (June 23, 2011), http://iceunion.org/download/286-287-press-release-pd-memo.pdf [http://perma.cc/6JNA-ZRCY].
323. (5th Cir. 2015). Though the suit specifically attacked the shape of DACA, the suit embodied an approach to enforcement discretion distinct from the one the Administration sought to advance even before DACA, thus undermining DHS leadership’s attempts to channel that discretion through informal, standards-based guidelines.
324. Ahilan Arulanantham, The President’s Relief Program as a Response to Insurrection, BALKINIZATION (Nov. 25, 2014, 5:00 PM), http://balkin.blogspot.com/2014/11/the-presidents-relief-program-as.html [http://perma.cc/X925-LLHF]
325. Zatz & Rodriguez, Supra note 237, at 679-81 (citing interviews with advocates who expressed concerns that the Morton Memos could not change institutional culture, that their implementation was slow and uneven, and that making the case for an exercise of discretion was particularly difficult for immigrants placed in mandatory detention).
326. Napolitano, Prosecutorial Discretion Memo, Supra note 103.
327. Declaration of Donald W. Neufeld, Supra note 206, at 5-9.
328. This story highlights the role of an agency’s institutional culture in limiting the ability of high-level executive branch officials to quickly redirect the institution’s priorities. At the same time, it shows the ways in which bureaucratic redundancy can diffuse the constraints that institutional culture might place on the pace of policy change. Because there were two agencies within DHS with the legal authority to make decisions on deferred action, the leadership within the Department could select the agency with an institutional culture more in line with the goals of the administrative initiative. See Jason Marisam, The President’s Agency Selection Powers, 65 ADMIN. L. REV. 821 (2013)
329. Magill & Vermeule, Supra note 220, at 1040 (arguing that where top officials have a closer relationship to the President, they are more likely to override others within the agency, suggesting that assignation of responsibility based on proximity of views to the President and political leadership can enable greater control of the bureaucracy by those delegated the power at issue).
330. Cox & Rodríguez, Supra note 7, at 517-519.
331. Cox & Posner, Supra note 160, at 1344-48
332. Rodríguez Supra note 99 (manuscript at 9- 10).
333. Cox & Posner, Supra note 160 (describing the myriad ways in which federal immigration law expressly incorporates local conditions and judgments)
334. For various critiques of DACA and DAPA that can be understood in these terms, see sources cited Supra note 14.
335. See generally Jonathan R. Macey, Organizational Design and Political Control of Administrative Agencies, 8 J.L. ECON. & ORG. 93 (1992)
336. McCubbins et al., Supra note 132.
337. Jacob E. Gersen, Designing Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 333-357 (Daniel A. Farber & Anne Joseph O’Connell eds., 2010).
338. The only way to avoid such a conflict would be to devise rule-like schemes that constrain enforcement discretion, but to somehow keep them from the public. Maintaining a gap between the system’s operation and the public’s beliefs about how it operates strikes us as extremely difficult. Even if it were possible, it is important to note that enforcement would then only be rational, not predictable. Thus the decisions of enforcement officials might still appear arbitrary to the public.
339. Randy Capps & Marc R. Rosenblum, Executive Action for Unauthorized Immigrants, MIGRATION POL’Y INST. 3-4 (Sept. 2014), http://www.migrationpolicy.org/sites/default /files/publications/Executive-Action-Brief.pdf [http://perma.cc/GBA5-2ZRX].
340. But cf. Price, Supra note 14, at 758 (arguing that DOJ’s marijuana policy is permissible because it only announces a policy rather than guaranteeing immunity).
341. While we focus here on the purported benefit of legal status, critics also claim that the work permits that accompany a grant of relief amount to an unauthorized legal benefit. The difficulty with this argument is that federal regulations, adopted more than two decades ago through notice-and-comment rulemaking, authorized the Attorney General (now the Secretary of DHS) to grant work permits to noncitizens who receive deferred action. See 8 C.F.R. § 274.12 (2015). Bizarrely, this regulation is never cited by the Texas district court. For a thorough explanation of this issue, see Legomsky, Written Testimony, Supra note 17, at 16-18
342. Price describes this as a prospective license to violate the law. See Price, Supra note 14, at 704.
343. As an aside, it is also far from clear that the Constitution prohibits such promises. If Article II were understood to do so, it would require that we treat the ubiquitous practice of granting immunity to criminal defendants as either unconstitutional or unenforceable.
344. SHOBA S. WADHIA, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL DISCRETION IN IMMIGRATION CASES 59-63 (2015) (describing the use of open-ended grants of deferred action, some of which lasted for up to eight years, for U visa applicants).
345. MANUEL & GARCIA, Supra note 29, at 17 (describing deferred action grants outside of DACA as “open-ended”).
346. Marty Lederman, Judge Hanen’s—and Michael McConnell’s—Mistakes About “Affirmative Action” in DAPA, BALKINIZATION (Feb. 25, 2015, 2:46 PM), http://balkin.blogspot.com/2015/02/judge-hanens-and-michael-mcconnells.html [http://perma.cc/4332-JGKL]; Eric Posner, Faithfully Executed, SLATE (Feb. 19, 2015. 3:23 PM), http://www.slate.com/articles/news_and_politics/view_from_chica go/2015/02/obama_s_dapa_immigration_program_is_legal_judge_hanen_s_injunction_will.html [http://perma.cc/7RTM-NVVH].
347. Mathew Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53 (2008).
348. One type of constraint on which we do not focus, but which is obviously very important, is constraint imposed by rights-regarding constitutional provisions like the First or Fourteenth Amendments. Even in a world where congressional priorities do not limit the substantive criteria on which the Executive bases enforcement, the Constitution does prohibit the use of some criteria. So, for example, the President could no more restrict grants of deferred action on the basis of race than could a federal prosecutor use race as a factor in charging decisions. See Legomsky, Written Testimony, supra note 17, at 15 (“[P]articular priorities can’t … otherwise violate equal protection of other individual constitutional rights.”). The Executive, of course, routinely makes discretionary judgments in the immigration arena based on nationality. Grants of temporary protected status and deferred enforced departure, for example, are made for groups of noncitizens based on their nationality, to provide protection for persons from countries beset by environmental disasters or civil strife or where the President’s foreign policy would be undermined by their return. See supra notes 22, 29 and accompanying text (discussing TPS and DED). In the main, this line does not present a constitutional concern, even though correlations between race and nationality abound. But were the President to draw nationality classifications in a manner that suggested an underlying race-based motivation, we believe it would be appropriate for critics and even courts to decry the President’s actions using the language of constitutionality.
349. Stone Supra note 215.
350. See Demore v. Kim, 538 U.S. 510 (2003)
351. United States v. Salerno, 481 U.S. 739 (1987).
352. By contrast, Gillian Metzger, for example, argues that the failure to supervise the exercise of discretion can in some circumstances amount to unconstitutional abdication of presidential responsibilities.
353. Metzger, Supra note 180, at 1874-1886.
354. As we explain in Part III, hypotheticals like this one presume that tax law aims for perfect compliance with the Tax Code.
355. In some sense, this inquiry resembles the debate in the foreign affairs domain over whether and how Congress should authorize the President to use force against a national security threat. Even if the President’s authority is not in dispute (and it often is), reasons that reflect constitutional values still exist for him to seek authorization from Congress, and genuine debate can be had over how best to unleash but yet constrain the President’s authority to use force. See, e.g., Robert Chesney et al., A Statutory Framework for Next-Generation Terrorist Threats, HOOVER INST. (2013), http://media.hoover.org/sites/default/files/documents/Statutory-Framework-for-Next-Generation-Terrorist-Threats.pdf [http://perma.cc/F8MG-PE6M]
356. Ryan Goodman, Obama’s Forever War Starts Now, FOREIGN POL’Y (Feb. 12, 2015), http://foreignpolicy.com/2015/02/12/obamas-forever-war-starts-now-aumf-isis-islamic-state [http://perma.cc/6KKG-PUFN].
357. For an elaboration of this holding, see supra notes 109, 119 and accompanying text. For skepticism by others of the district court’s conclusion, see, for example, Cass R. Sunstein, Texas Misjudges Obama on Immigration, BLOOMBERG VIEW (Feb. 17, 2015, 12:56 PM), http://www.bloombergview.com/articles/2015-02-17/what-the-judge-got-wrong-about-obama-s-immigration-plan [http://perma.cc/M8E7-BBSR].
358. If the Fifth Circuit were to uphold the district court’s injunction of the Obama relief initiatives, we believe there would be a strong case for Supreme Court review, given the fact that the court of appeals would have enjoined the nationwide implementation of an important federal program based on legal conclusions in a doctrinally muddy area. Though not creating an actual circuit split, the courts of appeals cases rejecting challenges to DACA on standing and jurisdictional grounds might also inform the Court’s consideration of whether the sorts of issues implicated in DAPA require Court attention. For a discussion of those cases, see supra notes 119-120 and accompanying text. In a case challenging the State of Arizona’s refusal to issue drivers’ licenses to DACA recipients, the Ninth Circuit recently requested briefing on the constitutionality of DACA, since the State defends its policy in part on the claim that DACA was unlawful. This litigation therefore might also generate disagreement in the courts of appeals. See Order, Ariz. Dream Act Coal. v. Brewer, No. 15-15307 (9th Cir. July 17, 2015).
359. Michael D. Shear, Appeals Panel Weighs Fate of Obama’s Immigration Overhaul, N.Y. TIMES, Apr. 27, 2015, http://www.nytimes.com/2015/04/18/us/obamas-immigration-overhaul-halted-by-judge-comes-before-appeals-court.html [http://perma.cc/S7LL-M7GA].
360. While the legislative rules doctrine is (in)famously incoherent, courts considering whether an agency action constitutes a legislative rule tend to focus on the following question: does the agency action create new legal obligations or benefits for the regulated party? See, e.g., Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014). As John Manning and others have noted, this question cannot be answered without some account of how one distinguishes the act of interpreting law from the act of making law and, ultimately, without an account of what constitutes law.
361. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893 (2004)
362. Manning Supra note 178. Formalist and functionalist approaches to these questions produce dramatically different results, and that is part of what accounts for the doctrinal confusion and indeterminacy. Despite this confusion, however, the cases on which the Texas district court relied are clearly inapposite. In nearly all of those cases, an agency tasked with enforcing a vague statutory obligation—often one in which the statute required the regulated party to engage in “reasonable” behavior—cached out that obligation in a guidance document that created a precise, often numerical standard. See, e.g., Nat. Res. Def. Council v. EPA, 643 F.3d 311 (D.C. Cir. 2011); Gen. Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002); Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000); Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987).
363. In each case, the court concluded that the agency had created new legal obligations—mandatory rules of conduct—that were not themselves embodied in the statute. And for that reason the court held that the agency action must be treated as a legislative rule, regardless of how the agency itself had characterized it. While these decisions do sometimes speak about whether the agency has “bound itself” to a course of conduct, the cases are not—contrary to the suggestion of the Texas district court—focused on the internal organization of the agency independent of the question of whether the agency has created new legal obligations. Under these cases, the fact that an agency directive “binds” low-level employees, by requiring them to comply with rules issued by their superiors, is not itself sufficient to render an agency action a legislative rule. Issuing rule-like commands to subordinates is consequential for the legislative rules calculus only insofar as those commands create or alter the legal obligations of the regulated parties. If courts take that approach to DACA and DAPA, then there can be little doubt that they are not legislative rules. As we explained earlier, the President’s relief initiatives do not create or alter the legal rights or obligations of immigrants. In contrast to the D.C. Circuit cases discussed above, they do not clarify or move some otherwise vague or shifting boundary between lawful and unlawful immigration status. That formal boundary is plain from the Immigration Code itself: all of the immigrants eligible for relief under the programs are currently in violation of immigration law, and they will remain in violation of immigration law even if they receive deferred action pursuant to one of those programs. Nothing in DACA or DAPA itself changes their legal status, and it has been well understood for a half century that the grant of deferred action itself does not confer any legal benefit.
364. Cf. Texas v. United States, No. 15-40238, slip op. at 29 (5th Cir. May 26, 2015) (“[W]e do not construe the broad grants of authority [in the INA and elsewhere] as assigning unreviewable decisions of vast economic and political significance to an agency.”).
365. For a sustained and compelling argument that the current legal debate over DAPA and DACA really dissolves into a debate about the legitimacy of the President’s policies in substance, see Ming H. Chen, Beyond Legality: The Legitimacy of Executive Action in Immigration Law, 66 SYRACUSE L. REV. (forthcoming 2015-2016).
366. In July 2015, DHS issued an advanced notice of proposed rulemaking and invited comments on a decision to expand another program designed to stabilize the status of unauthorized immigrants. See Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 80 Fed. Reg. 43-338 (proposed July 22, 2015) (to be codified at 8 C.F.R. pts. 103 & 212). The original program permitted certain immediate relatives of U.S. citizens to apply for waivers from the ground of inadmissibility related to unauthorized presence from the United States, rather than continue to require that they travel abroad. This requirement, which was the previous practice, not only led to lengthy separations from families due to processing delays, but also meant those noncitizens ran the risk of being denied a waiver and then being barred from entering the United States for three or ten years in light of section 212(a)(9)(B)(i) of the INA. The 2015 proposed rule would substantially expand those eligible to apply for such waivers by opening the process to anyone eligible for a visa and thus substantially counters the disincentives created by the three and ten year bars in section 212(a)(9)(B)(i). The Administration’s decision to invite comment on this proposal may provide some evidence as to how difficult and protracted a notice-and-comment period would be for DAPA, though we suspect even this proposal would spark far less controversy than the deferred action programs.
367. The Administration announced DACA in the summer before the 2012 presidential election, leading some commentators to conclude that the President’s quest for re-election and a strong showing among Latino voters motivated the decision. See Julia Preston & John H. Cushman, Obama To Permit Young Migrants to Remain in U.S., N.Y. TIMES, June 15, 2012, http://www.nytimes.com/2012/06/16/us/us-to-stop-deporting-some-illegal-immigrants.html [http://perma.cc/KF3E-R8R3] (quoting Senator Charles Grassley arguing that the President put “politics above responsible policies”).
368. For a discussion of the law-like customs and practices that govern the administrative state outside the purview of the courts and APA-based policing, see Nestor M. Davidson & Ethan J. Leib, Regleprudence—at OIRA and Beyond, 103 GEO. L.J. (forthcoming 2015), http://ssrn.com/abstract=2442413 [http://perma.cc/8GCS-SKC8].
369. A related problem has been the proliferation of states of legal limbo created through executive action. As compensation for its lack of control over ex ante screening and to address exigencies that have arisen but that the Code does not address, the Executive has created a variety of immigration non-statuses like deferred action that leave their recipients at the mercy of executive discretion. Compared to a world in which the Executive has not wielded such authority, this increasing complexity can seem like a positive development. But it is less than ideal. For a thorough articulation of these various executive-created statuses, see Geoffrey Heeren, The Status of Nonstatus, 64 AM. U. L. REV. 1115 (2015).
370. Cox & Rodríguez, Supra note 7, at 544
371. Rodríguez Supra note 265.
372. Of course, that presumes the Executive Branch does not prefer to have a pool of potentially removable and therefore vulnerable immigrants as a labor supply. But ferreting out and combating this tendency, we think, will be easier if the Executive Branch’s responsibilities are more clearly defined and subject to public scrutiny at the ex ante stage than at the enforcement stage.
373. Jeffrey S. Passel et al., Net Migration from Mexico Falls to Zero—and Perhaps Less, PEW RES. CTR. (Apr. 23, 2012), http://www.pewhispanic.org/2012/04/23/net-migration-from-mexico-falls-to-zero-and-perhaps-less [http://perma.cc/YB8W-4RBR].
374. Wadhia Supra note 265.
375. This argument resembles claims by the likes of James Bradley Thayer about the impact of judicial supremacy on congressional action, see James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, in LEGAL ESSAYS 1, 32-33 (1908) (“[W]e introduced for the first time into the conduct of government through its great departments a judicial sanction …. It will only imperil the whole of it if it is sought to give [courts] more. They must not step into the shoes of the law-maker.”), or the claim that robust judicial review absolves Congress of its obligations to conform its actions to the Constitution
376. Louis Fisher, DEFENDING CONGRESS AND THE CONSTITUTION 1-2 (2011) (criticizing the “submissive attitude” taken by many congressmen towards their constitutional oath in light of judicial constitutional interpretation). In statutory interpretation, textualists similarly claim that a certain type of judicial interpretation—textualism as opposed to purposivism—will give Congress incentives to draft laws more responsibly and clearly, and by implication that purposivism promotes sloppy legislative work.
377. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612-648 (1996) (“[S]eparation of lawmaking from law-exposition … provid[es] legislators an incentive to enact rules that impose clear and definite limits upon governmental authority, rather than adopting vague and discretionary grants of power.”).
378. For a collection of contexts in which actors use full compliance with the law to highlight what they see as failings in the formal rules, see Doris Kearns Goodwin, THE BULLY PULPIT: THEODORE ROOSEVELT, WILLIAM HOWARD TAFT, AND THE GOLDEN AGE OF JOURNALISM 209–10 (2013) (discussing Roosevelt’s strategy of using strict enforcement to generate support for legal change among elites)
379. Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 COLUM. L. REV. 831-832 (2015) (describing “maximalist enforcement tactics that have been adopted by certain chief executives”).