This piece was written in collaboration with four of my amazing students at the University of Chicago Law School: Samuel Jahangir, Benjamin Montague, Zeshawn Qadir, and Robert S. Sandoval.
Last month, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit brought by twenty-six states challenging President Obama's immigration policies. The case deals specifically with the constitutionality of the President's 2014 Deferred Action for Parents of Americans (DAPA) program, which offers "deferred action" to undocumented immigrants who are law-abiding parents of American citizens. Roughly four million people could qualify under the program, which would allow them to remain in the United States for three years and to apply for work authorization, on a renewable basis.
At the heart of the case is a question about the permissible scope of executive discretion. When the President executes federal laws, to what extent can he interpret and implement them in a manner consistent with his own policy objectives? From a constitutional standpoint, Article II provides that the President must "take care that the laws be faithfully executed." This provision has its roots in the aftermath of the Glorious Revolution of 1688, when the English Parliament took away the King's power to suspend acts of Parliament. The Framers of the American Constitution, similarly concerned about the exercise of unchecked executive power, adopted the "take care clause" of Article II.
Also at stake in this controversy is the longstanding tradition of prosecutorial discretion. The executive authority in the United States has traditionally had wide latitude to determine whether to bring charges against alleged lawbreakers. Because prosecutors often do not have the resources to pursue every possible case, they have always been understood to have the responsibility to prioritize more important cases over less important ones. The memorandum authorizing DAPA reasoned that the Executive Branch could appropriately rely on this traditional discretion to delay deportation in the least important immigration cases.
The Obama administration cites the Supreme Court's 1985 decision in Heckler v. Chaney to support the constitutionality of DAPA. In that case, several inmates on death row argued that the use of particular drugs for lethal injection violated federal law, and they sought a court order to compel the Federal Drug Administration (FDA) to enforce the governing statute. The Supreme Court agreed with the FDA that the agency could lawfully exercise discretion not to enforce the statute.
The Court in Heckler also suggested, however, that the principle of prosecutorial discretion was not unlimited. For example, that principle might not justify an extremely broad policy decision that completely sets aside an agency's legal responsibilities. Thus, although a prosecutor can decide not to press charges against particular cocaine smugglers, the Executive Branch cannot casually decide to stop enforcing duly-enacted federal drug laws altogether.
With that distinction in mind, the central question in the challenge to DAPA, like most legal questions, involves a choice between competing analogies. Is President Obama's immigration policy similar to the prosecutor who declines to press charges in particular cases, or is it a broad policy decision that abdicates his responsibility to faithfully execute the law?
The strongest argument against Obama's policy points to its political backdrop. The President attempted initially -- and unsuccessfully -- to persuade Congress to enact legislation similar to DAPA. It was only after he failed in that effort that he turned to executive action. In light of the fact that the President promulgated DAPA in order to accomplish by executive action what he could not get Congress to approve, to what extent can the President's action persuasively be cast as the legitimate exercise of prosecutorial discretion? This is a serious objection to DAPA.
On the other hand, though, the considerations that support deference to prosecutorial discretion in this situation are quite strong. There are currently 11.3 million undocumented immigrants in the United States, and the Department of Homeland Security has the resources to remove only 400,000 per year. If at least 10.9 million undocumented immigrants will remain in the United States this year no matter what, then offering deferral to the 4 million undocumented immigrants who are the lowest priority for deportation seems like a straightforward application of prosecutorial discretion, albeit on a larger scale than usual. For this reason, both sides conceded at oral argument that if President Obama had simply identified four million individuals and issued each of them a "low priority" card, he would have acted within the bounds of his power.
The particularly controversial aspect of DAPA is that it ties deferred action to substantive benefits. Although the beneficiaries of DAPA are not eligible for services such as food stamps, they are eligible under the program to apply for work authorization and to participate in programs such as Social Security. At oral argument, this resulted in a linguistic battle between the government and Chief Justice Roberts. Because deportation is merely deferred under DAPA, the undocumented immigrants who benefit from the program are not "legally present" in the United States, but at least for the purposes of work authorization, DAPA deems them to be "lawfully present."
The solution to this riddle depends on whether the benefits conferred on the beneficiaries of DAPA can be tied to the President's lawful exercise of discretion. On this point, important practical considerations cut in President Obama's favor. First, every deferred action program authorized by presidents since the 1970s has carried with it the potential for work authorization. There is therefore strong precedent for the President's policy. Second, and perhaps more important, once it is agreed that the President has the legal authority to defer removal for this subset of undocumented immigrants, it would seem cruelly inconsistent to allow these individuals to live in the United States while simultaneously denying them the means to support themselves.
It is important to bear in mind that the benefits at issue are quite limited. The long-term legal status of the beneficiaries of DAPA remains unchanged, and the government can still deport them at a later time. While they can earn credits for the purpose of Social Security, they likely won't benefit from those credits unless they receive a more permanent legal status in the future and are able to remain in the United States until retirement age. Finally, DAPA is advantageous to the nation in the sense that once recipients receive work authorization, they can start contributing to the tax base.
Perhaps most fundamentally, these aspects of DAPA do nothing more than ensure that those who are authorized to live here are allowed to earn a living. Justice Samuel Alito wondered during oral argument how it is possible to lawfully work without being lawfully present. Perhaps a better question would be to ask how a nation could with one hand offer a man a home, and with the other punish him for wanting to pay the rent.