Expanded Discretion: Criminal Justice and Immigration

The final problem of enforcement discretion is how executive officials should understand their role when enforcing federal criminal laws and other statutes that can’t possibly be fully enforced with available resources.

Here recent debates over federal marijuana enforcement and immigration policy are key examples. As more and more states have legalized marijuana use either for medical reasons or even across the board, proponents of liberalization have pressured the Justice Department to suspend enforcement of overlapping federal criminal restrictions on marijuana possession. In a series of policy statements (available here, here, and here), the Department has made clear that it is unlikely to prosecute offenders who are complying with state law unless their conduct implicates significant federal interests.

Regarding immigration, the Department of Homeland Security recently announced a controversial program of “Deferred Action for Childhood Arrivals” (“DACA”). Under this policy, certain undocumented immigrants who entered the United States as young children may obtain a promise of “deferred action” — effectively a promise of non-enforcement of removal statutes — for renewable two-year periods. Immigrants with this status may lawfully work in the United States; in effect deferred action carries a promise not to enforce sanctions against employers who hire these immigrants.

These examples are hard to think about because they both involve areas of law — federal criminal law and immigration — where complete enforcement of the law is effectively impossible and, as a result, the law isn’t written in a way that conforms to the public’s likely policy preferences.

Overbroad conceptions of executive discretion may have helped bring about this troubling legal structure to develop in the first place. The law on the books might better conform to public expectations if executive officials had maintained a stronger norm of full enforcement. It certainly seems likely that there would be more political pressure on Congress to liberalize marijuana laws and reform the immigration system if the letter of these laws were in practice applied to the sorts of sympathetic defendants who benefit from the administration’s current non-enforcement policies.

But at this point the norm of discretion is so entrenched, and the implicit congressional ratification of it seems so clear, that it doesn’t seem reasonable to require such unappealing forms of enforcement. Setting sensible priorities for enforcement is an appropriate aspect of the executive function in these legal contexts.

Nevertheless, to preserve as much political accountability for Congress as is possible, the executive mindset should remain one of law execution — of priority-setting rather than policy-making. Executive officials are free to set priorities for enforcement and to decline enforcement in many cases, but without more explicit statutory authorization they shouldn’t feel free to supplant the statutory policy by adopting announced policies of non-enforcement for broad categories of offenders.

From this perspective, the marijuana policy strikes me as more defensible than the immigration policy. As the Department’s guidance explains, prosecution of local marijuana violations has never been a priority for the Department; it has always left such enforcement principally to state authorities. In effect, the Department’s new guidance continues that policy, even though states have dramatically changed their own approach to enforcement. At the same time, the Department has appropriately made clear that any more definite relief from legal jeopardy under federal law will have to come from Congress.

The immigration policy, in contrast, provides a more definite and specific guarantee of non-enforcement to a broad category of undocumented immigrants who fall squarely within the scope of removal statutes.

The individuals covered by the policy are (in my view) extremely sympathetic and they no doubt would have been low priorities for removal under any reasonable set of enforcement priorities. It’s worth noting (as some folks have helpfully pointed out to me) that the Obama Administration has maintained vigorous enforcement with respect to other groups of undocumented immigrants. But DACA goes beyond simply turning a blind eye to their unlawful presence in the country. It effectively grants a form of lawful status not contemplated by the applicable statutes through an exercise of prosecutorial discretion.

It’s true that there is a history to the practice of deferred action. Although this form of relief originated in executive practice, it’s now mentioned in several statutes, so to some degree at least Congress may have ratified it.

Yet the practice (as I understand it) originated as a form of case-by-case humanitarian relief. While immigration officials have used it categorically a few times in the past (for instance, to grant relief to immigrant students affected by Hurricane Katrina), I’m not aware of it ever being used for as broad and significant a group of immigrants as in the DACA program. So I think it’s hard to claim that there’s been even an implicit ratification of the practice sufficient to support the DACA program.

This type of hard-and-fast prospective and categorical non-enforcement policy should require clearer congressional authorization. The executive branch should not be free to let Congress so easily off the hook.

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I’m going to stop there. For those interested in the full story, I encourage you to look at the full article, available on SSRN in draft form here and in the Vanderbilt Law Review in April. I’m grateful for all the many comments, which I’ll continue to ponder as I work on revisions.

Thanks again to Eugene and the other conspirators for including me in the blog! Happy New Year to all!