Is Judge Hanen’s Smackdown of Executive Action on Immigration “Narrowly Crafted”?
By Anil Kalhan
In a comment to Professor Dorf’s piece assessing Judge Andrew Hanen’s opinion and order blocking some of the Obama administration’s recent executive actions on immigration, Professor Steven Shiffrin poses the question of whether the injunction should be understood not as questioning the “prosecutorial discretion aspect” of the Obama administration’s initiatives, but rather as being “concerned with that part of the policy affording affirmative benefits”—an argument that, as he notes, is presented by Professor Michael McConnell in Wednesday’s Wall Street Journal.
According to Professor McConnell’s quick take, Judge Hanen’s opinion “carefully lays out the legal case against the program” and ultimately concludes that “prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making.” Such “benefits,” he asserts, have “never been part of prosecutorial discretion.” On that basis, McConnell concludes that Judge Hanen “narrowly crafted [his] order not to touch on prosecutorial discretion” and that the decree therefore does not interfere with executive discretion to set enforcement priorities.
McConnell is entirely correct that Judge Hanen at least professes to preserve the executive branch’s ability to establish enforcement priorities and exercise prosecutorial discretion. And it is also true that Judge Hanen exhibits considerable ire over the prospect of “award[ing] … benefits to otherwise removable aliens.” But let’s not be under any illusions: Judge Hanen’s opinion is remarkably sweeping in its tenor and its potential significance—and ultimately does not turn on any sort of distinction between the exercise of prosecutorial discretion, on the one hand, and the extension of “affirmative benefits,” on the other. The ruling should be understood as “narrowly crafted” in the same sense that someone wielding a velvet-lined sledge hammer as a weapon should be understood as “subtle.”
I.
To understand precisely where Professor McConnell gets this wrong, we need to start with and focus on a fundamental mischaracterization of the initiatives in question that McConnell’s essay shares with both Judge Hanen’s opinion and much of the rhetoric about the Obama administration’s initiatives that currently circulates in public discourse. According to McConnell, the Obama administration’s initiatives to expand its 2012 Deferred Action for Childhood Arrivals (DACA) program and to create a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program “grant[] lawful status to some four million or five million undocumented aliens” who have been in the United States since 2010—as long as those individuals, in McConnell’s words, “had a baby in this country” and “have not committed felonies.”
Judge Hanen’s opinion is littered with similar assertions, including repeated claims that the Obama administration plans to “grant legal status” to millions of undocumented noncitizens, that it “makes the illegal presence of millions of individuals legal,” that it “turn[s] DAPA recipients’ illegal presence into a legal one.” In a set of passages that McConnell relies upon and partially quotes, Judge Hanen’s disdain for the program is palpable:
Judge Hanen’s rhetoric is a bit more restrained than some of the more inflammatory remarks he has made about immigration in the recent past, which have been catalogued in news reports and in more detail in a report by the immigration advocacy organization America’s Voice. Although not much more restrained. To take just one example among many others, some of which were noted on Wednesday by Professor Dorf, Judge Hanen writes nonchalantly in his opinion about “self-deportation” as if that were a completely noncontroversial, ordinary thing to say.
These claims by both McConnell and Judge Hanen that the Obama administration is trying to “grant lawful status” to millions of undocumented immigrations are at the core of their objections to both programs. The claims are entirely continuous and of a piece with the kinds of accusations that anti-immigration politicians and opinion writers now casually throw around about DACA and DAPA on a routine basis—that the initiatives amount to “executive amnesty,” that they turn “anchor babies” into “automatic human shields” for their “illegal parents” (Rep. Steve King), that they amount to an outright “refusal to enforce our current immigration laws” (Rep. Bob Goodlatte), that they give “illegals … legal status,” (Ben Carson), and even that “in effect” they involve “printing up [and] counterfeiting immigration documents” (Sen. Ted Cruz). And on and on and on. As political rhetoric, the charges leveled by McConnell, Judge Hanen, and these anti-immigration politicians and opinion writers make for useful talking points and arresting sound bites. As legal claims, however, they’re also completely false.
II.
Like all of these anti-immigration politicians, both Professor McConnell and Judge Hanen play rather fast and loose with the facts when it comes to the notions of “lawful status” and “legal presence.” Both DACA and DAPA confer upon its recipients “deferred action,” which in one form or another has been a principal mechanism by which federal immigration officials have exercised prosecutorial discretion for decades. At its core, deferred action constitutes a time limited, revocable notification that federal officials have exercised prosecutorial discretion not to take action against that individual. And nothing more. The Supreme Court acknowledged and described the practice of deferred action in 1999, in the opinion for the Court by Justice Scalia in Reno v. American-Arab Anti-Discrimination Committee:
To be sure, in practice, once individuals are notified they have been granted deferred action—whether under DACA, DAPA, or otherwise—they could be understood to subsequently receive a highly limited form of quasi-legal recognition. As Geoffrey Heeren elaborates in an excellent forthcoming law review article, deferred action is only one of many longstanding forms which that quasi-legal recognition for noncitizens can take, forms that he collectively refers to as “nonstatus.” Indeed, as both Linda Bosniak and Gerald Neuman have explained in different ways, in important law review articles published many years ago, that kind of quasi-legal recognition necessarily and invariably extends in varying forms and degrees to all undocumented immigrants—without regard to deferred action or any other form of “nonstatus”—insofar as both constitutional and statutory law have never fully excluded undocumented immigrants from the ambit of legal protection and recognition in the United States altogether.
But any such quasi-legal recognition is considerably more limited than the kind of fully legal recognition extended to individuals with any kind of temporary or permanent lawful immigration status. Moreover, such recognition invariably arises from other federal, state, and local legal authority—not from the grant of deferred action itself, which confers no benefits. Deferred action itself is therefore inherently and necessarily tenuous and temporary and, contrary to what both McConnell and Judge Hanen assert, scarcely amounts to “lawful status”—either under the immigration statutes or in the everyday parlance that they evidently mean to use. In fact, the tenuous nature of deferred action is a significant reason why large numbers of individuals who are eligible for DACA have chosen not to apply. Nobody has any substantive right to apply for deferred action, and any particular grant of deferred action may be revoked by DHS at any point and for any reason. More broadly, the DAPA and DACA programs could be curtailed or rescinded altogether by the next president or, for that matter, by President Obama himself. (For example, if Congress were to dramatically increase its appropriations for DHS’s enforcement and removal operations—let’s arbitrarily say a five-fold increase—and President Obama were to sign that appropriations legislation into law, that might affect the extent to which the administration would choose to leave DAPA and DACA in place in their existing forms.)
As a result—notwithstanding what Judge Hanen insisted in his opinion, with evident alarm—there is nothing “irreversible” about deferred action or the DACA and DAPA programs. To the contrary, deferred action is reversible by its very nature. The programs might very well be difficult to reverse politically once instituted—but it is difficult to see why that should be legally relevant to any court in deciding whether or not to grant an injunction unless it wishes to operate as a transparently political actor. And yet, the clear implication in the rhetorical sleights of hand fashioned by both McConnell and Judge Hanen is that these initiatives somehow create a rigid, durable form of “lawful status” under the immigration laws that flouts the will of Congress—a form of “executive amnesty,” if you will, that turns “anchor babies” into “automatic human shields” for their “illegal parents” and gives “illegals . . . legal status.” As the actual nature of deferred action makes clear, that suggestion is misleading in the extreme.
III.
To see those rhetorical maneuvers in action, consider the manner in which Judge Hanen quotes information—selectively and out of context—from the “Frequently Asked Questions” page on the government’s website concerning DACA. According to Judge Hanen, the government necessarily concedes in that FAQ that DACA confers “affirmative status” when it states the following:
Tellingly (and conveniently), Judge Hanen decided not to quote the language immediately preceding the very passage that he cherry picks:
A related sleight of hand is even more obviously incorrect. According to Professor McConnell, DAPA “dispense[s] with” two sets of statutory provisions: first, a requirement that U.S. citizens and permanent residents be above the age of 21 to sponsor their parents to become lawful permanent residents, and second, a ground of immigration inadmissibility that presumptively bars individuals from being admitted to the United States for ten years if they leave after being unlawfully present for more than a year. (While McConnell claims that both of these provisions “have been part of statutory law for 60 years,” in fact Congress did not enact the ten-year bar into law until 1996). The language of “dispensing with” is itself significant and revealing, insofar as it implies that President Obama is somehow asserting a power to suspend or “dispense with” duly-enacted legislation, akin to the “dispensation” powers historically claimed by the papacy or English monarchs. Anti-immigration politicians and opinion writers now routinely make similar claims when they accuse President Obama of acting like a king or an emperor—or even engaging in “domestic Caesarism”—with his administration’s immigration initiatives. And in his opinion, Judge Hanen, too, makes very much the same kinds of claims when he asserts that the Obama administration’s initiatives “clearly circumvent[] immigration laws,” “establish[] a pathway for non-compliance and completely abandon[] entire sections of this country’s immigration law,” and involve “not just rewriting the laws [but] creating them from scratch.”
McConnell’s own assertion would have an element of truth if DAPA purported to give its recipients green cards and lawful permanent resident status—and might even have a more limited grain of truth if it purported to give its recipients temporary nonimmigrant visas. However, deferred action of course does no such thing—and, as such, the program “dispenses with” precisely none of what McConnell claims that it does. Noncitizens who are eligible for DAPA remain subject to the ten-year prospective inadmissibility bar, and their U.S. citizen and lawful permanent resident children remain unable to petition on their behalf for lawful permanent resident status before reaching the age of 21. More broadly, the Obama administration can hardly be accused of suspending or dispensing with the enforcement of the immigration laws. To the contrary, the administration has not only enforced those laws to the maximum extent of its appropriated funds, but in so doing has removed more individuals than any other administration in U.S. history, at a clip that now exceeds 400,000 individuals per year. Immigrants’ rights advocates have pointedly called President Obama the “deporter in chief” for enforcing the immigration laws so aggressively; current and former Obama administration officials, by contrast, have defended the vigorousness of their approach to enforcement. No matter which side has the better of that argument, the fact and nature of the emergent regime of mass deportation at the heart of that dispute gives any suggestion that the Obama administration has suspended or dispensed with “entire sections of this country’s immigration laws”—to put it charitably—an exceedingly odd, “through the looking glass” quality.
IV.
Judge Hanen is not wrong in observing that individuals who have been granted deferred action (whether under DACA, DAPA, or otherwise) can become eligible to seek some affirmative benefits—albeit benefits that are considerably more limited than those available to individuals who are in fact lawfully present in the United States. But as noted above, the availability or non-availability of any such benefits is governed by separate legal authority and administrative guidance that long predate DACA and DAPA. Like the question of “unlawful presence” for purposes of the prospective inadmissibility bar, questions concerning eligibility for those benefits are therefore conceptually separate from the questions concerning an individual’s immigration status and the exercise of prosecutorial discretion.
If Judge Hanen’s ruling were really confined to the question of benefits, then one also would expect the opinion to devote some attention—indeed, any attention—to analyzing the federal, state, or local legal authority that governs whatever benefits troubled him. However, having devoted an enormous amount of ink making a complete hash out of analyzing the “lawful status” that DAPA and DACA supposedly confer, Judge Hanen’s opinion then proceeds to devote essentially no attention at all to the question of whether the executive branch has legal authority, whether inherent or delegated, to extend benefits to individuals who are granted deferred action under DACA, DAPA, or otherwise.
Take, for example, employment authorization. Eligibility for employment authorization for deferred action recipients is not governed by the DACA or DAPA programs, but by regulations that predate those programs by decades. Indeed, under DACA and DAPA, applications for deferred action and for work authorization are not even submitted using the same forms—strictly speaking, they are separate application processes governed by completely different criteria. Since at least the 1960s, the executive branch has exercised delegated authority to grant and deny employment authorization to various categories of noncitizens—including recipients of deferred action, but only to those who could affirmatively show an economic necessity to work. Formal, codified regulations have governed those practices and procedures since 1981. When Congress adopted the Immigration Reform and Control Act of 1986, it legislated against the background of those practices and regulations and recognized this executive authority more expressly by statute, defining noncitizens’ eligibility for employment in the United States to include individuals “authorized to be so employed by this Act or by the Attorney General” (emphasis added). Soon after IRCA was enacted, the INS denied a formal petition (which was filed before IRCA was enacted) to rescind these employment authorization regulations as beyond its legal authority. In denying that petition, INS noted Congress’s express recognition and preservation of its regulatory authority in IRCA while the petition was pending.
Since then, pursuant to these longstanding regulations, executive officials have continued to grant employment authorization to individuals granted deferred action only upon a showing of economic necessity to work. That same legal standard applies to applications for employment authorization by individuals granted deferred action under DACA and DAPA. While Congress has made many major changes to the immigration laws in the years since then, including a number of changes concerning statutory eligibility for employment authorization itself, at no point has it sought to curtail the executive branch’s authority to grant or deny work authorization to recipients of deferred action under this longstanding regulatory regime.
In the current litigation challenging DAPA and expanded DACA, the parties have jousted to some extent in their briefs over this legal authority concerning employment authorization. In Judge Hanen’s opinion, however, the question of executive legal authority to grant work authorization plays no role whatsoever. Aside from a passing reference in an extended block quote of the DHS memorandum initiating DAPA, and a couple of references to the governing regulations for a different substantive purpose, Judge Hanen does not cite or bother to engage the statutory provision or regulations governing the Attorney General’s authority to grant employment authorization. At all. If the ruling genuinely were meant to be “narrowly crafted” to questions about “granting illegal aliens benefits not allowed by law,” as Professor McConnell states, then Judge Hanen’s complete lack of interest in the actual statutes and regulations that authorize those benefits makes very little sense.
But hey, why bother with mind-numbing technicalities about immigration law when you can instead go on and on for dozens of pages with colorful grandstanding about “self-deportation,” the “specter of terrorism,” the “severe law enforcement problems” that allegedly arise from the “constant influx of illegal immigrants,” the states’ claimed loss of “badly needed tax dollars each year due to the presence of illegal aliens,” the Obama administration’s creation of “pathways for non-compliance,” its practices of “intentionally allow[ing] known illegal aliens to enter and remain in the country,” its “announcement” of its “abdication of its statutory duties,” its proclamation that it has “no intention of enforcing the laws promulgated to address millions of illegal aliens residing in the United States,” and its “awarding of legal presence to millions of illegal immigrants.” (Oh, and as Professor Dorf notes, Obamacare. I guess Benghazi wasn’t available.) I mean, we all know that’s how federal judges really show the world that their rulings are “careful,” “thoughtful,” and “narrowly crafted.”
V.
Let’s assume, for the sake of argument, that the characterization of Judge Hanen’s ruling as “narrowly crafted” were correct. If Judge Hanen’s opinion genuinely had been “explicitly confined” to “the grant of work authorization and affirmative benefits,” then surely that’s what we would expect the injunction itself to explicitly and narrowly focus on as well. (Even on that assumption, it remains somewhat doubtful that there would be sufficient “irreparable harm” to the states who are plaintiffs in this litigation to justify a preliminary injunction in the first place, but I’ll leave that to one side.)
An injunction along those lines might have blocked the issuance of employment authorization documents or whatever other “benefits” Judge Hanen were concerned with, but it would have let DHS proceed with its plans under the DAPA and expanded DACA programs to accept and grant applications for deferred action itself—which, after all, has been a principal means by which immigration officials have implemented their exercise of prosecutorial discretion for decades, as discussed above. If Judge Hanen really meant to preserve the authority of federal officials to exercise prosecutorial discretion, then there would be no basis to enjoin the process by which those officials grant deferred action under the Obama administration’s initiatives, since that is what deferred action is—nothing more and nothing less.
To be sure, the number of DAPA- and expanded DACA-eligible individuals willing to come forward and seek deferred action under those circumstances almost certainly would be considerably more limited than in the absence of those benefits. But that kind of injunction might be consistent with a ruling that was “narrowly crafted” to prevent (as Professor McConnell puts it) “granting illegal aliens benefits not allowed by law.”
Instead, however, Judge Hanen’s injunction bludgeoned the Obama administration’s initiatives in their entirety. The injunction did not simply block DHS from conferring “benefits” that Judge Hanen believed to be impermissible, or even from accepting and processing applications for those benefits. Rather, it enjoined federal officials “from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (‘DAPA’) program” and “from implementing any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals (‘DACA’) program.”
Perhaps the sweeping nature of the injunction should not be surprising in light of the sweeping nature of the substance of Judge Hanen’s opinion. While much public discussion of the ruling has emphasized its formally narrow disposition—the basis of the decision in the Administrative Procedure Act’s notice-and-comment provisions, and the opinion’s express reservation of both constitutional questions and any conclusion about the legality of DAPA and expanded DACA on the merits—Judge Hanen does not leave a whole lot of doubt about where he stands on those issues. As Professor Eric Posner notes in Slate, the opinion is “pregnant with constitutional rhetoric that suggests he sympathizes with the critics’ arguments.” And, as discussed above, pregnant with plenty of non-legal rhetoric that makes those sympathies all but crystal clear.
VI.
At its core, therefore, Judge Hanen’s ruling seems best understood as fundamentally calling into question deferred action as a legitimate means of exercising prosecutorial discretion altogether—and in addition, as questioning the substantive criteria and means established by the Obama administration under DACA and DAPA to exercise that prosecutorial discretion. Which also, necessarily, entails a challenge to the ability of executive branch officials to establish and meaningfully implement enforcement priorities and exercise discretion to carry out those priorities.
In the immigration context, the executive branch’s prioritization of certain categories of potentially removable noncitizens is not simply authorized by Congress under its broad delegations of immigration authority—including both express delegations and what Professors Adam Cox and Cristina Rodríguez term “de facto delegations”—but also derives from a direct congressional mandate. For example, appropriations legislation in recent years has directed executive officials to prioritize deportation of individuals with convictions for “violent crimes,” and of course the resources appropriated by Congress are themselves not sufficient to seek and effectuate removal of more than a fraction of the individuals who are potentially removable under the immigration laws—particularly given the extent to which Congress has dramatically expanded the categories of individuals who are potentially subject to removal. (And unlike in many other contexts, without any statute of limitations.) To give effect to the administration’s enforcement priorities in this context, DACA and DAPA establish categorical eligibility criteria for the exercise of prosecutorial discretion—along with, as is frequently neglected, categorical disqualifying criteria that render ineligible many individuals who might otherwise qualify—and then confer discretion upon lower level officials to make case-by-case determinations about whether to grant deferred action.
For Judge Hanen, this approach does not genuinely constitute the exercise of “prosecutorial discretion.” Indeed, for Judge Hanen, programs like DAPA and DACA are “not a necessary adjunct for the operation of the DHS or for effecting its stated priorities” at all—because presumably, on his view, the individuals who might be eligible already are lower enforcement priorities and everyone involved in the enforcement process will simply recognize and heed that automatically. “By the very terms of DAPA,” he concludes, DHS already has been exercising prosecutorial discretion “for these recipients [of DAPA] for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for ‘administrative convenience.’”
What this somewhat confused statement appears to add up to is a conclusion that deferred action itself might be somehow illegitimate—whether granted under categorical programs such DACA or DAPA or under the largely unguided and unsupervised practices that have been in place for decades. Genuine prosecutorial discretion, Judge Hanen seems to be saying, must not only involve purely case-by-case decision-making, but also ad hoc and unguided decision-making that takes place without any supervision or direction from senior officials. Both of those conclusions are problematic when applied to DAPA and DACA. For one thing, as Professors Eric Posner and Cass Sunstein have both emphasized, DACA and DAPA actually do, in fact, involve case-by-case decision-making: discretion remains for lower-level officials to deny requests for deferred action even when individuals satisfy the eligibility criteria.
But at a more fundamental level, Judge Hanen also seems to be saying that senior executive officials should be restricted or perhaps even disabled altogether in the exercise of their own discretion to create a framework for supervising the exercise of prosecutorial discretion by lower level officials in a manner that ensures uniform and consistent execution of the agency’s enforcement priorities—which is precisely how DACA and DAPA can and should be understood. For many years before DACA was first implemented, immigration agency officials had issued guidance to the field on what the agencies’ enforcement priorities were and how lower level officials should exercise discretion to carry out those priorities. However, contrary to the picture painted by Judge Hanen—in which the rational and uniform exercise of prosecutorial discretion somehow just magically happened on its own these past five years, precluding any need for programs like DACA and DAPA—enforcement patterns in the field often diverged significantly from the enforcement priorities and guidelines for the exercise of discretion set from above, in part due to Congress’s dramatic expansion in the categories of individuals who are potentially deportable, in part due to the massive growth in the scale of enforcement that has occurred as a result, and in part due to resistance to those priorities by officials in the field, in the form of what immigrants’ rights lawyer Ahilan Arulanantham goes so far as to characterize as an “insurrection.”
The extent to which supervised, categorical approaches to prosecutorial discretion might be justified in the interest of uniformity, consistency, and predictability has been much less prominent in debates over DACA and DAPA than arguments about resource constraints and humanitarian considerations, although it has been noted at least in passing as a rationale by a handful of scholars, including Professors Hiroshi Motomura, Gillian Metzger, and Sai Prakash. However, the limited attention given to this rationale should not cause us to minimize its significance. Especially as the scale of immigration enforcement has grown to such massive levels—making the task of ensuring uniformity and consistency in the execution of the law and the implementation of enforcement priorities an even more formidable challenge—the need for appropriate and effective supervision of lower level discretion has only grown more important. On Judge Hanen’s view, however, senior executive branch officials apparently would be required to, well, “abdicate” any responsibility to supervise lower level discretionary decision-making and let the vagaries of the bureaucracy reign supreme.
VII.
What exactly is at stake in whether or not Judge Hanen’s ruling is characterized as a narrow and minimalist ruling? In instrumental terms, both critics and defenders of the Obama administration’s initiatives have incentives to characterize the decision as a narrow one. For defenders of the administration’s initiatives, characterizing Judge Hanen’s decision as narrow might help to forestall a potential “chilling effect” in immigrant communities that could result from any impression that Judge Hanen has dealt a fatal blow to those programs. From this perspective, if immigrant communities perceive DAPA and expanded DACA as vulnerable, then individuals who are eligible for DAPA and expanded DACA might be intimidated from applying if and when the programs are reinstated. That chilling effect could also extend to applications to renew deferred action under the original DACA program, even though that program is not affected by Judge Hanen’s ruling.
For critics of these initiatives, characterizing Judge Hanen’s ruling as a narrow one might be understood as helpful in their attempts to legitimate the decision as a reasonable one—to make the decision seem less radical, sweeping, or “off the wall,” as Professor Jack Balkin would put it, than it actually is. (Which is not to suggest that Professor McConnell himself is motivated by such instrumental ends in presenting his argument, but simply to observe that the characterization itself may be relevant to how Judge Hanen’s decision is perceived and understood.) When it comes to immigration, Judge Hanen has amply demonstrated—well before President Obama announced his most recent executive actions—that he has very strongly held personal views on the subject. While those opinions made Judge Hanen an especially appealing judge for Republican governors when they were shopping for a judicial district in which to file their lawsuit, they may be a bit less convenient now, as defenders of Judge Hanen’s decision try to assimilate that ruling into the legal mainstream. Attempting to characterize Judge Hanen’s decision as modest or narrow in some fashion might seem useful in trying to temper his earlier, inflammatory comments and to rehabilitate his public image.
At the same time, if we’re simply concerned in non-instrumental terms with characterizing Judge Hanen’s ruling in an accurate manner, then both sets of responses seem off the mark. Interestingly, politicians critical of the Obama administration’s immigration actions have been eager to defend Judge Hanen’s ruling in considerably more maximalist terms than McConnell—for example, characterizing the decision as having definitively concluded that the initiatives are “illegal” and “unconstitutional” because they create a form of “executive amnesty.” These political comments may be no less instrumental insofar as they reinforce the points these Obama administration detractors have long been trying to score; to some extent, those politicians also may simply be offering those characterizations in aid of their ongoing legislative fight to tie funding for DHS to proposals that seek to eliminate the Obama administration’s programs. At another level, however, these politicians make a perfectly reasonable observation, for to conclude that Judge Hanen’s ruling is in any sense “narrowly crafted” appears to seriously miss the forest for the trees.
In a comment to Professor Dorf’s piece assessing Judge Andrew Hanen’s opinion and order blocking some of the Obama administration’s recent executive actions on immigration, Professor Steven Shiffrin poses the question of whether the injunction should be understood not as questioning the “prosecutorial discretion aspect” of the Obama administration’s initiatives, but rather as being “concerned with that part of the policy affording affirmative benefits”—an argument that, as he notes, is presented by Professor Michael McConnell in Wednesday’s Wall Street Journal.According to Professor McConnell’s quick take, Judge Hanen’s opinion “carefully lays out the legal case against the program” and ultimately concludes that “prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making.” Such “benefits,” he asserts, have “never been part of prosecutorial discretion.” On that basis, McConnell concludes that Judge Hanen “narrowly crafted [his] order not to touch on prosecutorial discretion” and that the decree therefore does not interfere with executive discretion to set enforcement priorities.
McConnell is entirely correct that Judge Hanen at least professes to preserve the executive branch’s ability to establish enforcement priorities and exercise prosecutorial discretion. And it is also true that Judge Hanen exhibits considerable ire over the prospect of “award[ing] … benefits to otherwise removable aliens.” But let’s not be under any illusions: Judge Hanen’s opinion is remarkably sweeping in its tenor and its potential significance—and ultimately does not turn on any sort of distinction between the exercise of prosecutorial discretion, on the one hand, and the extension of “affirmative benefits,” on the other. The ruling should be understood as “narrowly crafted” in the same sense that someone wielding a velvet-lined sledge hammer as a weapon should be understood as “subtle.”
I.
To understand precisely where Professor McConnell gets this wrong, we need to start with and focus on a fundamental mischaracterization of the initiatives in question that McConnell’s essay shares with both Judge Hanen’s opinion and much of the rhetoric about the Obama administration’s initiatives that currently circulates in public discourse. According to McConnell, the Obama administration’s initiatives to expand its 2012 Deferred Action for Childhood Arrivals (DACA) program and to create a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program “grant[] lawful status to some four million or five million undocumented aliens” who have been in the United States since 2010—as long as those individuals, in McConnell’s words, “had a baby in this country” and “have not committed felonies.”
Judge Hanen’s opinion is littered with similar assertions, including repeated claims that the Obama administration plans to “grant legal status” to millions of undocumented noncitizens, that it “makes the illegal presence of millions of individuals legal,” that it “turn[s] DAPA recipients’ illegal presence into a legal one.” In a set of passages that McConnell relies upon and partially quotes, Judge Hanen’s disdain for the program is palpable:
Instead of merely refusing to enforce the INA's removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.” . . . Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. . . .
Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that—not enforcing the law. Nonenforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations….
The Government defends DAPA as a measure taken to prioritize removals, and as previously described, the DAPA Memorandum mentions or reiterates some of the Secretary’s priorities. The States do not dispute that Secretary Johnson has the legal authority to set these priorities, and this Court finds nothing unlawful about the Secretary’s priorities. The HSA’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country. [Hanen Order at 86-87, 92]
Judge Hanen’s rhetoric is a bit more restrained than some of the more inflammatory remarks he has made about immigration in the recent past, which have been catalogued in news reports and in more detail in a report by the immigration advocacy organization America’s Voice. Although not much more restrained. To take just one example among many others, some of which were noted on Wednesday by Professor Dorf, Judge Hanen writes nonchalantly in his opinion about “self-deportation” as if that were a completely noncontroversial, ordinary thing to say.These claims by both McConnell and Judge Hanen that the Obama administration is trying to “grant lawful status” to millions of undocumented immigrations are at the core of their objections to both programs. The claims are entirely continuous and of a piece with the kinds of accusations that anti-immigration politicians and opinion writers now casually throw around about DACA and DAPA on a routine basis—that the initiatives amount to “executive amnesty,” that they turn “anchor babies” into “automatic human shields” for their “illegal parents” (Rep. Steve King), that they amount to an outright “refusal to enforce our current immigration laws” (Rep. Bob Goodlatte), that they give “illegals … legal status,” (Ben Carson), and even that “in effect” they involve “printing up [and] counterfeiting immigration documents” (Sen. Ted Cruz). And on and on and on. As political rhetoric, the charges leveled by McConnell, Judge Hanen, and these anti-immigration politicians and opinion writers make for useful talking points and arresting sound bites. As legal claims, however, they’re also completely false.
II.
Like all of these anti-immigration politicians, both Professor McConnell and Judge Hanen play rather fast and loose with the facts when it comes to the notions of “lawful status” and “legal presence.” Both DACA and DAPA confer upon its recipients “deferred action,” which in one form or another has been a principal mechanism by which federal immigration officials have exercised prosecutorial discretion for decades. At its core, deferred action constitutes a time limited, revocable notification that federal officials have exercised prosecutorial discretion not to take action against that individual. And nothing more. The Supreme Court acknowledged and described the practice of deferred action in 1999, in the opinion for the Court by Justice Scalia in Reno v. American-Arab Anti-Discrimination Committee:
At each stage [of the deportation process] the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience. As one treatise describes it:Literally for years at this point, both Obama administration officials and other observers—including immigration law scholars with significant expertise on these matters—have emphasized what the Supreme Court itself implicitly recognized in that case: deferred action does not confer any lawful status under the immigration laws. Indeed, standing alone, deferred action confers no benefits of any kind: it simply amounts to a memorialization and notification of the exercise of prosecutorial discretion. As Professor Hiroshi Motomura aptly described it in 2013, deferred action itself amounts to little more than the following: “If the president can make a list to prioritize who should be deported first, then I think it’s clear that he can give people at the bottom of that list a piece of paper saying you’re at the bottom.”
To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated. [Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 483-84 (1999)]
To be sure, in practice, once individuals are notified they have been granted deferred action—whether under DACA, DAPA, or otherwise—they could be understood to subsequently receive a highly limited form of quasi-legal recognition. As Geoffrey Heeren elaborates in an excellent forthcoming law review article, deferred action is only one of many longstanding forms which that quasi-legal recognition for noncitizens can take, forms that he collectively refers to as “nonstatus.” Indeed, as both Linda Bosniak and Gerald Neuman have explained in different ways, in important law review articles published many years ago, that kind of quasi-legal recognition necessarily and invariably extends in varying forms and degrees to all undocumented immigrants—without regard to deferred action or any other form of “nonstatus”—insofar as both constitutional and statutory law have never fully excluded undocumented immigrants from the ambit of legal protection and recognition in the United States altogether.
But any such quasi-legal recognition is considerably more limited than the kind of fully legal recognition extended to individuals with any kind of temporary or permanent lawful immigration status. Moreover, such recognition invariably arises from other federal, state, and local legal authority—not from the grant of deferred action itself, which confers no benefits. Deferred action itself is therefore inherently and necessarily tenuous and temporary and, contrary to what both McConnell and Judge Hanen assert, scarcely amounts to “lawful status”—either under the immigration statutes or in the everyday parlance that they evidently mean to use. In fact, the tenuous nature of deferred action is a significant reason why large numbers of individuals who are eligible for DACA have chosen not to apply. Nobody has any substantive right to apply for deferred action, and any particular grant of deferred action may be revoked by DHS at any point and for any reason. More broadly, the DAPA and DACA programs could be curtailed or rescinded altogether by the next president or, for that matter, by President Obama himself. (For example, if Congress were to dramatically increase its appropriations for DHS’s enforcement and removal operations—let’s arbitrarily say a five-fold increase—and President Obama were to sign that appropriations legislation into law, that might affect the extent to which the administration would choose to leave DAPA and DACA in place in their existing forms.)
As a result—notwithstanding what Judge Hanen insisted in his opinion, with evident alarm—there is nothing “irreversible” about deferred action or the DACA and DAPA programs. To the contrary, deferred action is reversible by its very nature. The programs might very well be difficult to reverse politically once instituted—but it is difficult to see why that should be legally relevant to any court in deciding whether or not to grant an injunction unless it wishes to operate as a transparently political actor. And yet, the clear implication in the rhetorical sleights of hand fashioned by both McConnell and Judge Hanen is that these initiatives somehow create a rigid, durable form of “lawful status” under the immigration laws that flouts the will of Congress—a form of “executive amnesty,” if you will, that turns “anchor babies” into “automatic human shields” for their “illegal parents” and gives “illegals . . . legal status.” As the actual nature of deferred action makes clear, that suggestion is misleading in the extreme.
III.
To see those rhetorical maneuvers in action, consider the manner in which Judge Hanen quotes information—selectively and out of context—from the “Frequently Asked Questions” page on the government’s website concerning DACA. According to Judge Hanen, the government necessarily concedes in that FAQ that DACA confers “affirmative status” when it states the following:
[Y]ou are considered to be lawfully present in the United States . . . and are not precluded from establishing domicile in the United States. Apart from immigration laws, “lawful presence,” “lawful status,” and similar terms are used in various other federal and state laws. [Hanen Opinion, at 95]However, that passage refers exclusively to the interpretation of the definition of “unlawful presence” in a specific provision of the INA, governing bars on future admissibility for individuals who have previously been “unlawfully present.” The statement has no bearing on lawful immigration status. Because of the complicated way in which Congress has drafted the immigration statute—making it a “hideous creature,” as Professors Stephen Legomsky and Cristina Rodríguez put it in the very first sentence of their immigration law casebook—the definition of “lawful presence” under that provision has a number of exceptions and qualifications, and is not coextensive with the meaning of “lawful status” under the immigration laws. Indeed, that is precisely the point of the passage on the DHS website that Judge Hanen quotes: terms like “lawful status” and “lawful presence,” as used in various federal and state law contexts, do not have a uniform and shared legal meaning and are not always coextensive with the core meaning of “lawful status” for immigration law purposes.
Tellingly (and conveniently), Judge Hanen decided not to quote the language immediately preceding the very passage that he cherry picks:
Q5: If my case is deferred, am I in lawful status for the period of deferral?In a number of different ways, DHS emphasizes the same point around half a dozen times on the very same page of its website: deferred action does not provide lawful status under the immigration laws or a path to citizenship. Judge Hanen, however, does not bother even to acknowledge that fact—much less to engage its legal significance—and instead chooses to try to hide the ball.
A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status. The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. [USCIS]
A related sleight of hand is even more obviously incorrect. According to Professor McConnell, DAPA “dispense[s] with” two sets of statutory provisions: first, a requirement that U.S. citizens and permanent residents be above the age of 21 to sponsor their parents to become lawful permanent residents, and second, a ground of immigration inadmissibility that presumptively bars individuals from being admitted to the United States for ten years if they leave after being unlawfully present for more than a year. (While McConnell claims that both of these provisions “have been part of statutory law for 60 years,” in fact Congress did not enact the ten-year bar into law until 1996). The language of “dispensing with” is itself significant and revealing, insofar as it implies that President Obama is somehow asserting a power to suspend or “dispense with” duly-enacted legislation, akin to the “dispensation” powers historically claimed by the papacy or English monarchs. Anti-immigration politicians and opinion writers now routinely make similar claims when they accuse President Obama of acting like a king or an emperor—or even engaging in “domestic Caesarism”—with his administration’s immigration initiatives. And in his opinion, Judge Hanen, too, makes very much the same kinds of claims when he asserts that the Obama administration’s initiatives “clearly circumvent[] immigration laws,” “establish[] a pathway for non-compliance and completely abandon[] entire sections of this country’s immigration law,” and involve “not just rewriting the laws [but] creating them from scratch.”
McConnell’s own assertion would have an element of truth if DAPA purported to give its recipients green cards and lawful permanent resident status—and might even have a more limited grain of truth if it purported to give its recipients temporary nonimmigrant visas. However, deferred action of course does no such thing—and, as such, the program “dispenses with” precisely none of what McConnell claims that it does. Noncitizens who are eligible for DAPA remain subject to the ten-year prospective inadmissibility bar, and their U.S. citizen and lawful permanent resident children remain unable to petition on their behalf for lawful permanent resident status before reaching the age of 21. More broadly, the Obama administration can hardly be accused of suspending or dispensing with the enforcement of the immigration laws. To the contrary, the administration has not only enforced those laws to the maximum extent of its appropriated funds, but in so doing has removed more individuals than any other administration in U.S. history, at a clip that now exceeds 400,000 individuals per year. Immigrants’ rights advocates have pointedly called President Obama the “deporter in chief” for enforcing the immigration laws so aggressively; current and former Obama administration officials, by contrast, have defended the vigorousness of their approach to enforcement. No matter which side has the better of that argument, the fact and nature of the emergent regime of mass deportation at the heart of that dispute gives any suggestion that the Obama administration has suspended or dispensed with “entire sections of this country’s immigration laws”—to put it charitably—an exceedingly odd, “through the looking glass” quality.
IV.
Judge Hanen is not wrong in observing that individuals who have been granted deferred action (whether under DACA, DAPA, or otherwise) can become eligible to seek some affirmative benefits—albeit benefits that are considerably more limited than those available to individuals who are in fact lawfully present in the United States. But as noted above, the availability or non-availability of any such benefits is governed by separate legal authority and administrative guidance that long predate DACA and DAPA. Like the question of “unlawful presence” for purposes of the prospective inadmissibility bar, questions concerning eligibility for those benefits are therefore conceptually separate from the questions concerning an individual’s immigration status and the exercise of prosecutorial discretion.If Judge Hanen’s ruling were really confined to the question of benefits, then one also would expect the opinion to devote some attention—indeed, any attention—to analyzing the federal, state, or local legal authority that governs whatever benefits troubled him. However, having devoted an enormous amount of ink making a complete hash out of analyzing the “lawful status” that DAPA and DACA supposedly confer, Judge Hanen’s opinion then proceeds to devote essentially no attention at all to the question of whether the executive branch has legal authority, whether inherent or delegated, to extend benefits to individuals who are granted deferred action under DACA, DAPA, or otherwise.
Take, for example, employment authorization. Eligibility for employment authorization for deferred action recipients is not governed by the DACA or DAPA programs, but by regulations that predate those programs by decades. Indeed, under DACA and DAPA, applications for deferred action and for work authorization are not even submitted using the same forms—strictly speaking, they are separate application processes governed by completely different criteria. Since at least the 1960s, the executive branch has exercised delegated authority to grant and deny employment authorization to various categories of noncitizens—including recipients of deferred action, but only to those who could affirmatively show an economic necessity to work. Formal, codified regulations have governed those practices and procedures since 1981. When Congress adopted the Immigration Reform and Control Act of 1986, it legislated against the background of those practices and regulations and recognized this executive authority more expressly by statute, defining noncitizens’ eligibility for employment in the United States to include individuals “authorized to be so employed by this Act or by the Attorney General” (emphasis added). Soon after IRCA was enacted, the INS denied a formal petition (which was filed before IRCA was enacted) to rescind these employment authorization regulations as beyond its legal authority. In denying that petition, INS noted Congress’s express recognition and preservation of its regulatory authority in IRCA while the petition was pending.
Since then, pursuant to these longstanding regulations, executive officials have continued to grant employment authorization to individuals granted deferred action only upon a showing of economic necessity to work. That same legal standard applies to applications for employment authorization by individuals granted deferred action under DACA and DAPA. While Congress has made many major changes to the immigration laws in the years since then, including a number of changes concerning statutory eligibility for employment authorization itself, at no point has it sought to curtail the executive branch’s authority to grant or deny work authorization to recipients of deferred action under this longstanding regulatory regime.
In the current litigation challenging DAPA and expanded DACA, the parties have jousted to some extent in their briefs over this legal authority concerning employment authorization. In Judge Hanen’s opinion, however, the question of executive legal authority to grant work authorization plays no role whatsoever. Aside from a passing reference in an extended block quote of the DHS memorandum initiating DAPA, and a couple of references to the governing regulations for a different substantive purpose, Judge Hanen does not cite or bother to engage the statutory provision or regulations governing the Attorney General’s authority to grant employment authorization. At all. If the ruling genuinely were meant to be “narrowly crafted” to questions about “granting illegal aliens benefits not allowed by law,” as Professor McConnell states, then Judge Hanen’s complete lack of interest in the actual statutes and regulations that authorize those benefits makes very little sense.
But hey, why bother with mind-numbing technicalities about immigration law when you can instead go on and on for dozens of pages with colorful grandstanding about “self-deportation,” the “specter of terrorism,” the “severe law enforcement problems” that allegedly arise from the “constant influx of illegal immigrants,” the states’ claimed loss of “badly needed tax dollars each year due to the presence of illegal aliens,” the Obama administration’s creation of “pathways for non-compliance,” its practices of “intentionally allow[ing] known illegal aliens to enter and remain in the country,” its “announcement” of its “abdication of its statutory duties,” its proclamation that it has “no intention of enforcing the laws promulgated to address millions of illegal aliens residing in the United States,” and its “awarding of legal presence to millions of illegal immigrants.” (Oh, and as Professor Dorf notes, Obamacare. I guess Benghazi wasn’t available.) I mean, we all know that’s how federal judges really show the world that their rulings are “careful,” “thoughtful,” and “narrowly crafted.”
V.
Let’s assume, for the sake of argument, that the characterization of Judge Hanen’s ruling as “narrowly crafted” were correct. If Judge Hanen’s opinion genuinely had been “explicitly confined” to “the grant of work authorization and affirmative benefits,” then surely that’s what we would expect the injunction itself to explicitly and narrowly focus on as well. (Even on that assumption, it remains somewhat doubtful that there would be sufficient “irreparable harm” to the states who are plaintiffs in this litigation to justify a preliminary injunction in the first place, but I’ll leave that to one side.)An injunction along those lines might have blocked the issuance of employment authorization documents or whatever other “benefits” Judge Hanen were concerned with, but it would have let DHS proceed with its plans under the DAPA and expanded DACA programs to accept and grant applications for deferred action itself—which, after all, has been a principal means by which immigration officials have implemented their exercise of prosecutorial discretion for decades, as discussed above. If Judge Hanen really meant to preserve the authority of federal officials to exercise prosecutorial discretion, then there would be no basis to enjoin the process by which those officials grant deferred action under the Obama administration’s initiatives, since that is what deferred action is—nothing more and nothing less.
To be sure, the number of DAPA- and expanded DACA-eligible individuals willing to come forward and seek deferred action under those circumstances almost certainly would be considerably more limited than in the absence of those benefits. But that kind of injunction might be consistent with a ruling that was “narrowly crafted” to prevent (as Professor McConnell puts it) “granting illegal aliens benefits not allowed by law.”
Instead, however, Judge Hanen’s injunction bludgeoned the Obama administration’s initiatives in their entirety. The injunction did not simply block DHS from conferring “benefits” that Judge Hanen believed to be impermissible, or even from accepting and processing applications for those benefits. Rather, it enjoined federal officials “from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (‘DAPA’) program” and “from implementing any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals (‘DACA’) program.”
Perhaps the sweeping nature of the injunction should not be surprising in light of the sweeping nature of the substance of Judge Hanen’s opinion. While much public discussion of the ruling has emphasized its formally narrow disposition—the basis of the decision in the Administrative Procedure Act’s notice-and-comment provisions, and the opinion’s express reservation of both constitutional questions and any conclusion about the legality of DAPA and expanded DACA on the merits—Judge Hanen does not leave a whole lot of doubt about where he stands on those issues. As Professor Eric Posner notes in Slate, the opinion is “pregnant with constitutional rhetoric that suggests he sympathizes with the critics’ arguments.” And, as discussed above, pregnant with plenty of non-legal rhetoric that makes those sympathies all but crystal clear.
VI.
At its core, therefore, Judge Hanen’s ruling seems best understood as fundamentally calling into question deferred action as a legitimate means of exercising prosecutorial discretion altogether—and in addition, as questioning the substantive criteria and means established by the Obama administration under DACA and DAPA to exercise that prosecutorial discretion. Which also, necessarily, entails a challenge to the ability of executive branch officials to establish and meaningfully implement enforcement priorities and exercise discretion to carry out those priorities.
In the immigration context, the executive branch’s prioritization of certain categories of potentially removable noncitizens is not simply authorized by Congress under its broad delegations of immigration authority—including both express delegations and what Professors Adam Cox and Cristina Rodríguez term “de facto delegations”—but also derives from a direct congressional mandate. For example, appropriations legislation in recent years has directed executive officials to prioritize deportation of individuals with convictions for “violent crimes,” and of course the resources appropriated by Congress are themselves not sufficient to seek and effectuate removal of more than a fraction of the individuals who are potentially removable under the immigration laws—particularly given the extent to which Congress has dramatically expanded the categories of individuals who are potentially subject to removal. (And unlike in many other contexts, without any statute of limitations.) To give effect to the administration’s enforcement priorities in this context, DACA and DAPA establish categorical eligibility criteria for the exercise of prosecutorial discretion—along with, as is frequently neglected, categorical disqualifying criteria that render ineligible many individuals who might otherwise qualify—and then confer discretion upon lower level officials to make case-by-case determinations about whether to grant deferred action.
For Judge Hanen, this approach does not genuinely constitute the exercise of “prosecutorial discretion.” Indeed, for Judge Hanen, programs like DAPA and DACA are “not a necessary adjunct for the operation of the DHS or for effecting its stated priorities” at all—because presumably, on his view, the individuals who might be eligible already are lower enforcement priorities and everyone involved in the enforcement process will simply recognize and heed that automatically. “By the very terms of DAPA,” he concludes, DHS already has been exercising prosecutorial discretion “for these recipients [of DAPA] for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for ‘administrative convenience.’”
What this somewhat confused statement appears to add up to is a conclusion that deferred action itself might be somehow illegitimate—whether granted under categorical programs such DACA or DAPA or under the largely unguided and unsupervised practices that have been in place for decades. Genuine prosecutorial discretion, Judge Hanen seems to be saying, must not only involve purely case-by-case decision-making, but also ad hoc and unguided decision-making that takes place without any supervision or direction from senior officials. Both of those conclusions are problematic when applied to DAPA and DACA. For one thing, as Professors Eric Posner and Cass Sunstein have both emphasized, DACA and DAPA actually do, in fact, involve case-by-case decision-making: discretion remains for lower-level officials to deny requests for deferred action even when individuals satisfy the eligibility criteria.
But at a more fundamental level, Judge Hanen also seems to be saying that senior executive officials should be restricted or perhaps even disabled altogether in the exercise of their own discretion to create a framework for supervising the exercise of prosecutorial discretion by lower level officials in a manner that ensures uniform and consistent execution of the agency’s enforcement priorities—which is precisely how DACA and DAPA can and should be understood. For many years before DACA was first implemented, immigration agency officials had issued guidance to the field on what the agencies’ enforcement priorities were and how lower level officials should exercise discretion to carry out those priorities. However, contrary to the picture painted by Judge Hanen—in which the rational and uniform exercise of prosecutorial discretion somehow just magically happened on its own these past five years, precluding any need for programs like DACA and DAPA—enforcement patterns in the field often diverged significantly from the enforcement priorities and guidelines for the exercise of discretion set from above, in part due to Congress’s dramatic expansion in the categories of individuals who are potentially deportable, in part due to the massive growth in the scale of enforcement that has occurred as a result, and in part due to resistance to those priorities by officials in the field, in the form of what immigrants’ rights lawyer Ahilan Arulanantham goes so far as to characterize as an “insurrection.”
The extent to which supervised, categorical approaches to prosecutorial discretion might be justified in the interest of uniformity, consistency, and predictability has been much less prominent in debates over DACA and DAPA than arguments about resource constraints and humanitarian considerations, although it has been noted at least in passing as a rationale by a handful of scholars, including Professors Hiroshi Motomura, Gillian Metzger, and Sai Prakash. However, the limited attention given to this rationale should not cause us to minimize its significance. Especially as the scale of immigration enforcement has grown to such massive levels—making the task of ensuring uniformity and consistency in the execution of the law and the implementation of enforcement priorities an even more formidable challenge—the need for appropriate and effective supervision of lower level discretion has only grown more important. On Judge Hanen’s view, however, senior executive branch officials apparently would be required to, well, “abdicate” any responsibility to supervise lower level discretionary decision-making and let the vagaries of the bureaucracy reign supreme.
VII.
What exactly is at stake in whether or not Judge Hanen’s ruling is characterized as a narrow and minimalist ruling? In instrumental terms, both critics and defenders of the Obama administration’s initiatives have incentives to characterize the decision as a narrow one. For defenders of the administration’s initiatives, characterizing Judge Hanen’s decision as narrow might help to forestall a potential “chilling effect” in immigrant communities that could result from any impression that Judge Hanen has dealt a fatal blow to those programs. From this perspective, if immigrant communities perceive DAPA and expanded DACA as vulnerable, then individuals who are eligible for DAPA and expanded DACA might be intimidated from applying if and when the programs are reinstated. That chilling effect could also extend to applications to renew deferred action under the original DACA program, even though that program is not affected by Judge Hanen’s ruling.For critics of these initiatives, characterizing Judge Hanen’s ruling as a narrow one might be understood as helpful in their attempts to legitimate the decision as a reasonable one—to make the decision seem less radical, sweeping, or “off the wall,” as Professor Jack Balkin would put it, than it actually is. (Which is not to suggest that Professor McConnell himself is motivated by such instrumental ends in presenting his argument, but simply to observe that the characterization itself may be relevant to how Judge Hanen’s decision is perceived and understood.) When it comes to immigration, Judge Hanen has amply demonstrated—well before President Obama announced his most recent executive actions—that he has very strongly held personal views on the subject. While those opinions made Judge Hanen an especially appealing judge for Republican governors when they were shopping for a judicial district in which to file their lawsuit, they may be a bit less convenient now, as defenders of Judge Hanen’s decision try to assimilate that ruling into the legal mainstream. Attempting to characterize Judge Hanen’s decision as modest or narrow in some fashion might seem useful in trying to temper his earlier, inflammatory comments and to rehabilitate his public image.
At the same time, if we’re simply concerned in non-instrumental terms with characterizing Judge Hanen’s ruling in an accurate manner, then both sets of responses seem off the mark. Interestingly, politicians critical of the Obama administration’s immigration actions have been eager to defend Judge Hanen’s ruling in considerably more maximalist terms than McConnell—for example, characterizing the decision as having definitively concluded that the initiatives are “illegal” and “unconstitutional” because they create a form of “executive amnesty.” These political comments may be no less instrumental insofar as they reinforce the points these Obama administration detractors have long been trying to score; to some extent, those politicians also may simply be offering those characterizations in aid of their ongoing legislative fight to tie funding for DHS to proposals that seek to eliminate the Obama administration’s programs. At another level, however, these politicians make a perfectly reasonable observation, for to conclude that Judge Hanen’s ruling is in any sense “narrowly crafted” appears to seriously miss the forest for the trees.