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Update on Immigration and Prosecutorial Discretion (and Recess Appointments)
Michael Ramsey

The challenge to President Obama's order not to enforce the immigration laws against certain illegal immigrants (Crane v. Napolitano) has taken another step forward: the trial judge found the challengers have a likelihood of success on the merits (in the context of a request for a preliminary injunction).  However, the court ordered additional brief on a jurisdictional issue (whether the challenge -- which is brought by immigration enforcement agents -- should be resolved administratively as an employment matter).

On the merits, the court's opinion finds that the word "shall" in the relevant statute is mandatory, leaving no room for discretion.  This leads to a constitutional question: is it unconstitutional for Congress to eliminate prosecutorial discretion?  That argument gets rejected, with the court giving this analysis:

When the Executive “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and “[c]ourts can sustain exclusive [executive] control in such a case” only if that particular subject matter “is within [the Executive’s] domain and beyond control by Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–40 (1952) (Jackson, J., concurring). Because Section 1225(b)(2)(A) expressly requires immigration officers to initiate removal proceedings against applicants for admission who are not “clearly and beyond a doubt entitled to be admitted,” the Court can uphold DHS’s discretion to refrain from initiating removal proceedings under those circumstances only if Congress does not have power to legislate in the area of immigration law with regard to the removal of aliens.

Congress’s power over immigration is rooted in the Constitution, is inherent in the powers of sovereign nations, and is an incident of international law. U.S. Const. art. I, § 8, cl. 4 (“The Congress shall have power . . . [t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”); Chae Chan Ping v. United States, 130 U.S. 581, 603–07 (1889) (“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”); ...  Congress unquestionably has the ability to legislate in the area of immigration law with regard to the removal of aliens. Because immigration law is not “within [the Executive’s] domain and beyond control by Congress,” Congress has the ability to eliminate DHS’s discretion with respect to when to initiate removal proceedings against an alien, and DHS cannot implement measures that are incompatible with Congressional intent.

On a quick read, that doesn't seem clearly right to me.  The question isn't whether immigration is an area "within [the Executive’s] domain and beyond control by Congress," but whether immigration enforcement (and thus, more broadly, law enforcement) is.

Further, as I have tentatively suggested, immigration may be an area where the President has a stronger degree of constitutionally protected discretion.

(Via Paul Mirengoff at PowerLine.  Also, commentary here from William Jacobson at Legal Insurrection).

(For academic commentary on the broader issues, see here).

SOMEWHAT RELATED: The administration's petition for certiorari from the U.S. Supreme Court in the recess appointments case, filed yesterday, is here.  (Via SCOTUSblog).