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02/24/2015

Seven Questions on Immigration Non-Enforcement
Michael Ramsey

Prominent commentators -- among them Ilya Somin, Eric Posner, and Erwin Chemerinsky & Samuel Kleiner -- have defended the President's Deferred Action for Parents of Americans (DAPA) program as an exercise of the President's power of prosecutorial discretion.  I'm inclined to agree with their premises.  Given limited enforcement resources, the President is entitled to make decisions on enforcement priority, including by designating categories of non-enforcement based on a policy assessment of which violators are most morally deserving (or, put another way, least problematic).  True, the President cannot simply refuse to enforce a law across the board, as that would amount to suspending (dispensing with) the law, an action contrary to his duty to take care that the laws are faithfully executed.  But so long as the President continues to execute a law against some material number of violators, the fact that he does not execute it against another material category of violators is consistent with his prosecutorial powers and duties.

So, for example, the President's decision not to enforce the federal drug laws against people in states where their actions are legal under state law, while continuing to enforce the federal drug laws in other circumstances, seems defensible.  The key is that the President's decision does not change anyone's rights or otherwise alter any law; it is simply non-action.  Violating the federal drug laws remains illegal; but for now anyway, the executive branch is going to do anything about certain specified violations.

But that leaves me with the following questions about DAPA:

(1)  Suppose, through the actions of a vindictive ICE agent, a person covered by DAPA is slated for deportation.  Can that person seek a judicial remedy to block deportation?

(2) A well-respected immigrants' rights website, the National Immigration Law Center, states that "a person granted deferred action is considered by the federal government to be lawfully present in the U.S. for as long as the grant of deferred action status."  Is that statement correct?

(3)  Under DAPA, a covered person explicitly receives deferred status for three years.  That extends beyond the term of the current President.  Does DAPA purport to bind the next President?  If not, does the three year term have any legal purpose or explanation?

(4) Under DAPA, to receive the three-year deferred status a covered person must submit certain paperwork and pay a fee of around $400.  Does the President's power of prosecutorial discretion include the power to impose a fee to obtain it (in effect, to sell indulgences)?  Can the executive branch license violations of the drug laws upon payment of a fee in advance?

(5)  Upon application and payment of the fee, persons covered by DAPA receive a work permit and a social security number.  Does this convey on them a legal entitlement to work, or any other legal entitlement?  If not, is there any legal explanation for this process?

(6)  Although much of immigration law is reserved to the federal government, the states are allowed to some extent to treat persons in the country illegally differently from persons in the country legally.  Does qualification under DAPA change the way a state is allowed to treat the covered person (that is, must the state now treat them as "lawfully present")?

(7)  My understanding is that federal law limits the ability of private persons to discriminate against legal immigrants based on their immigration status (that is, e.g., employers cannot favor citizens over lawful aliens).  Does qualification under DAPA change the way a private person is allowed to treat covered persons (that is, is an employer barred from refusing to hire them)?

For DAPA to qualify as prosecutorial discretion, I think all seven questions must be answered "no." Otherwise, DAPA seems to be more than non-action.  I am not sure, however, that any of them can be answered "no," either as a logical or as a practical matter.  If they can be, it would be great for DAPA proponents to say so in unmistakable terms.

To be clear, DAPA may still be constitutional if it is an exercise of discretion conveyed by statutes.  But that is different from  it being part of the President's constitutional power to execute the law.