Zachary Price is an Associate Professor at UC Hastings College of the Law.
The Supreme Court’s four-four affirmance in United States v. Texas may mean that the legal battle over immigration will go on. Because the appeal involved only a preliminary injunction, the Supreme Court might have the chance to revisit the issues in the case, perhaps with a full complement of Justices, following a final judgment.
In this brief post, I will therefore offer some thoughts on what I see as the central issue presented by the immigration program at issue – the scope of executive authority to decline enforcement of statutes, and relatedly the extent of judicial authority to address this question.
The litigation in this case in fact involves a host of difficult issues on which further guidance from the Supreme Court would be beneficial. Those issues include: the scope of standing to challenge government inaction; whether states receive “special solicitude” in the standing analysis; what standard determines when agency rules require notice-and-comment procedures; and whether individual district courts hold authority to enjoin agency rules on a nationwide basis.
All these questions have broad ramifications, and it’s worth noting that this case reversed the political valence that some of them have had historically. Perhaps it’s for the best that the Court avoided addressing them in such a politically charged context.
As I see it, though, the central question presented by the immigration program at issue, “Deferred Action for Parents of Americans and Lawful Permanent Residents” (“DAPA”), remains the extent of executive authority to alter the effective scope of statutes through enforcement policy.
That question, too, has significance far beyond this particular immigration dispute – and indeed as I will explain its importance should appear all the more stark in this fevered political season.
Let me start by noting that I find DAPA’s beneficiaries enormously sympathetic. Congress’s inability to craft sensible immigration reform to regularize their status is simply incomprehensible. But the question of executive enforcement obligation at the heart of the case arises across a wide range of contexts, from environmental law to gun control to tax collection.
In all these contexts, as in immigration, resource constraints and practical challenges may make complete enforcement of statutory requirements effectively impossible. But by the same token, how executive officials approach their enforcement responsibilities – how precise and definitive they are about when and whether particular prohibitions will be enforced – often matters at least as much as formal statutory prohibitions in determining on-the-ground compliance with legal mandates. And while the dark turn our politics have recently taken makes criticism of any policy benefiting immigrants uncomfortable, the same developments should also remind us how much damage a president could do to important statutory policies simply by declining to enforce them.
In my view, which I have elaborated elsewhere, presidents hold a basic default constitutional obligation to seek to effectuate statutory policies. The Constitution obligates the president to “take Care that the Laws be faithfully executed.” That means, at a minimum, that the president cannot change the law itself without delegated authority from Congress to do so. It should also mean that executive officials generally may not do the practical equivalent by adopting what I have called categorical and prospective non-enforcement policies – policies that provide advance assurances to broad subsets of regulated parties that the law will not apply to them.
Where precisely this line falls may often be debatable, but it is hard for me to see how DAPA does not breach it. The government has justified the policy as just another exercise of organic agency enforcement discretion, of the authority to prioritize some cases over others in allocating limited enforcement resources. But DAPA does more than that. The program would invite millions of undocumented immigrants, essentially those with a child who is a citizen or legal permanent resident and who meet certain other criteria, to apply for “deferred action.” Though formally nothing more than a non-binding temporary reprieve from deportation, deferred action under DAPA would effectively offer its beneficiaries a three-year renewable assurance of non-removal. What is more, under applicable regulations, deferred action would entail eligibility for work authorization and certain other legal benefits, despite statutory restrictions on employment of undocumented immigrants.
The program is thus far more definitive than more typical non-enforcement policies, which merely announce where the government intends to focus its enforcement efforts. Indeed, alongside DAPA, the Department of Homeland Security adopted a more conventional enforcement policy, unchallenged in the litigation (and thus still in force), that directs enforcement officials to focus on certain types of cases rather than others.
For these reasons, I believe DAPA goes beyond what executive officials may presume authority to do as a matter of organic agency enforcement discretion. As a matter of executive authority, then, the key question is whether Congress has provided more specific authority for the program.
The executive branch’s own lawyers in the Justice Department’s Office of Legal Counsel concluded that it did. (I should disclose that I worked at OLC between 2009 and 2012 although I am obviously speaking here only for myself.) Importantly, OLC recognized that programmatic use of deferred action “may raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system.” The office nevertheless deemed DAPA (but not a further proposed program) permissible based in part on Congress’s approval of putatively analogous executive programs in the past.
The Fifth Circuit found these arguments from historical practice unpersuasive, and there are some questions to sort out on remand about what precisely the states are challenging and what relevant arguments they may have waived. But in principle the Supreme Court might revisit this question of authority if the case makes its way back up after a final judgment.
The government has also argued that DAPA’s validity is non-justiciable because it is an enforcement policy. In general, I agree that whether executive officials are adequately enforcing particular statutory prohibitions is not an appropriate judicial question. Importantly, that is not because executive enforcement is entirely discretionary, as courts have sometimes suggested. As I have argued here, it is instead because courts often lack manageable criteria for assessing whether executive officials are really doing their best.
Nevertheless, it is hard for me to see how this principle precludes substantive judicial review of DAPA. Given DAPA’s unusually definitive character, the basic debate over authority for the policy, and certainly over the availability of legal benefits such as work authorization, strikes me as justiciable (assuming the states have standing). At the very least, the question whether applicable statutes provide authority to grant work authorization so broadly is one courts can address as a matter of statutory interpretation. Accordingly, if the case ever makes its way back to the Supreme Court, the Court should consider whether adequate immigration-specific authority for DAPA exists, just as OLC did. It should not simply approve the program as a routine exercise of agency enforcement discretion.
Why does all this matter? For those sympathetic (as I am) to DAPA’s policy goals, it is crucial to remember that the basic question presented by this policy – how far executive officials may go in stripping force from statutes through non-enforcement – arises across a wide range of contexts.
Non-enforcement is a fundamentally deregulatory power. It is an authority to strip force from statutes, and it has been used that way by Republican presidents in the past. People who believe in regulation as a means of advancing the public good and protecting the vulnerable – that is to say, Democrats – have a lot to lose on this issue. Thus, once again, liberals may have some reason to be grateful that the Court did not issue any sweeping ruling about executive non-enforcement authority.
That brings us, finally, to the question of who the next president will be. Hillary Clinton has pledged to continue DAPA, which could allow this litigation to go on. Donald Trump, in contrast, pledges to somehow deport all eleven million undocumented immigrants in the United States.
Apart from immigration, however, Trump’s cavalier attitude toward the rule of law suggests that he might take executive non-enforcement to unprecedented extremes. In fact, just this week he reportedly promised some unspecified form of relief from statutory restrictions on political activity by tax-exempt religious organizations.
As I write, there is reason to hope that The Donald’s candidacy will collapse under its own weight. I at least hope that one factor in his defeat will be his evident disregard for basic constitutional values, including above all the importance of legal restraints on personal authority. Even so, Trump’s success to this point should be an occasion for reflection on separation-of-powers limits of all sorts, of which the executive obligation to faithfully execute statutes is certainly one. In a Trump administration, non-enforcement might well be the least of our problems, but it would surely be one of them.