Barack Obama's Executive Power Isn't What He Thinks It Is

NewRepublic.com:

President Obama has vowed to take executive action on immigration reform and the big debate, right now, is over how far he can go. The left has confidently asserted that Obama has wide-ranging authority—to defer deportations of undocumented workers and grant them work authorizations. The reason? Because, they say, the president has lots of leeway over how to enforce the laws. It’s called “prosecutorial discretion” and they say it’s no different from what local authorities do every day.

“For Mr. Obama to use the tools at hand to focus on high-priority targets — felons, violent criminals, public-safety and national-security threats — and to let many others alone would be a rational and entirely lawful exercise of discretion,” the New York Times editorial board wrote Sunday. “It is the kind of thing prosecutors, police and other law-enforcement and regulatory agencies do every day.”

President Obama has talked about his authority in similar terms, which suggests that he and his advisors are thinking along the same lines. But the concept of prosecutorial discretion is a lot more complicated—and its implications a lot less clear—than Obama and his allies make it sound. The president’s power to set priorities over law enforcement has real limits. The further he stretches his authority, the louder conservatives will yell about his lawlessness, and the greater chance that they’re correct.

The premise of prosecutorial discretion is pretty straightforward: The federal government never has enough resources to enforce every law. Think about taxes: The IRS couldn’t possibly scrutinize every single tax filing to make sure every individual has paid the proper amount in taxes. The agency has to decide where to focus its enforcement efforts—who to audit, for example, and how extensively to audit them. It’s a lot like local police deciding whether to pull over drivers who are going 66 in a 65 mph zone. Local prosecutors do the same thing when they decide not to pursue minor infractions, or sign off on plea bargains, so they can focus their efforts on locking up dangerous criminals. The federal government does this all the time as well. Laws typically give agencies that discretion, and that discretion can go pretty far. In implementing Dodd-Frank, for example, financial regulatory agencies have missed numerous deadlines for finalizing different rules. There simply was no way, given the resources Congress allotted them, to complete the rules in time. So, they prioritized accordingly.

But prosecutorial discretion also has limits, for the very simple and important reason that Congress—i.e., the legislative branch—still has sole authority to write laws. There are very rare exceptions to this: The president may have extra authority in when congressional dysfunction makes it impossible for the federal government to deal with a crisis. (Failing to lift the debt ceiling might have qualified under this criteria.) But you can’t really argue that applies to the case of immigration. Gridlock has prevented Congress from passing laws that address our broken system, but the country doesn’t face some kind of existential crisis because of it. Nor is it completely a function of congressional dysfunction. As Ross Douthat, a conservative columnist at the New York Times, explained last week, the Obama administration chose not to make immigration reform a priority when it controlled both houses of Congress. That might have been the right decision, given other priorities, but it’s a reminder that Congress doesn’t bear sole responsibility for failing to change immigration laws.

Another limit on prosecutorial discretion has to do with the way presidents use it—on a case-by-case basis versus on a whole category of people. Traditionally, prosecutorial discretion has been used in individual cases. Consider the previous examples of a motorist driving 66 miles per hour on a 65 mph road or a prosecutor cutting a plea bargain with a defendant. In each case, the law enforcement official makes their decision independently. There is no official police policy to allow drivers to go 1 mph over the speed limit or to offer plea deals. The department may issue rules advising their officials to be lenient with slight speeding, for instance, but the officers are not prohibited from making their own decisions. People driving 1 mph over the speed limit are still at risk of receiving a speeding ticket.
The Administration seemingly understands this distinction well, because it has tried to describe its actions as leaving final enforcement decisions in the hands of individual officers. One example is the now-famous “Morton Memo.” That’s a document that John Morton, the director of U.S. Immigration and Customs Enforcement, issued in 2011. It gave ICE new priorities for which people to deport.  The Morton Memo did not actually exempt anyone from enforcement. Immigration officers were still free to make a determination of deportation in each individual case—i.e., they could still deport somebody who was low on Morton’s priority list. In other words, it provided guidelines for using case-by-case prosecutorial discretion—and no one argued that it was illegal.

In 2012, the administration announced the Deferred Action for Childhood Arrivals (DACA) program, which gives deferred status to undocumented immigrants under the age of 30 who were brought into the United States as children before 2007. This program is widely believed to be the prototype for whatever Obama might do this fall. When the administration announced DACA, then-homeland security chief Janet Napolitano was careful to say that the Department of Homeland Security would continue to make case-by-case determinations for each applicant.

You can bet the Administration will make similar statements whenever Obama announces his new initiative. But the claim just isn’t very credible. Whenever President Obama talks about this issue, he speaks in a categorical sense. “These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag,” Obama said when he announced DACA. “They are Americans in their heart, in their minds, in every single way but one:  on paper.  They were brought to this country by their parents—sometimes even as infants—and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.”

If this is not a case of categorical discretion, what exactly would be? You always have to make determinations on an individual level to judge whether the person qualifies for a certain program. But the eligibility criteria are set across-the-board. That certainly sounds like a categorical use of prosecutorial discretion. And the fact that the administration has tried to spin the program as a case-by-case use of prosecutorial discretion demonstrates that they are sensitive to the different legal ramifications associated with categorical policy.

(It’s noteworthy that, when asked by the Washington Post’s Greg Sargent about this very question last week, the acting DHS Attorney General during that period sidestepped the issue—twice.)

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