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11/23/2014

Josh Blackman on the OLC Memo and the Constitutional Limits of Prosecutorial Discretion
Michael Ramsey

Josh Blackman has multiple posts on the President's immigration order, including: The Constitutional Limits of Prosecutorial Discretion. Here is an excerpt: 

The Department of Justice Office of Legal Counsel’s memorandum justifying President Obama’s new executive action recognizes that prosecutorial discretion is not “unlimited.” As a result, the memo attempts to draw a line between lawful prosecutorial discretion, and unconstitutional executive lawmaking.

Citing the Supreme Court’s 1985 precedent of Heckler v. Chaney, the memo identifies four “principles governing the permissible scope of enforcement discretion.” First, as the Court noted in Chaney, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” This factor would almost always seem to be satisfied.

Second, the President “cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Specifically, the memo adds, “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.” This argument reflects the backdrop of Congressional acquiescence, and the failure of the legislative branch to set any broad policies concerning immigration laws.

Plus this: Eight Observations About OLC Memo on Constitutionality of Executive Action on Immigration

And this: My Op-Ed in L.A. Times – Congress has itself to blame for ceding so much power to the President. Here is an excerpt: 

Last week at the Federalist Society convention, a panel was held on the President’s duty to take care that the laws are faithfully executed with John Baker, Ron Cass, John Eastman, Chris Schroeder, Neal Devins, and moderated by Judge Griffith (CADC). Most of the discussion focused on the President’s ability to defer prosecutions of deportations. Sam Stein of the Huffington Post (who was sitting next to me by the only table in the Mayflower with a power outlet) reported “Legal Panel At Federalist Society Begrudgingly Accepts Obama’s Immigration Powers.”

This headline irked many members of the Federalist Society, but Sam accurately reported the event.

The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.

My good friend John Baker made a very important point, which inspired an Op-Ed I wrote in today’s Los Angeles Times.

“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”

As usual, John is exactly right on the structure of our Constitution. Throughout the 20th Century, Congress has shirked its duty to legislate and appropriate to maintain the separation of powers.

RELATED:  At Balkinization, Adam Cox and Cristina Rodriguez: Executive Discretion and Congressional Priorities. Here is an excerpt: 

... [I]n the debate leading up to the President’s announcement of administrative immigration relief, most commentators acknowledged that his prosecutorial discretion was not unlimited—that somewhere a line would be crossed from permissible effectuation of enforcement priorities and to an unconstitutional failure to enforce the law.  Yet most commentators—especially proponents of the President using his discretion to provide relief to broad categories of unauthorized immigrants—have been reluctant to specify where that line might be.  We think this is because the line cannot be drawn with precision using conventional legal analysis.  Last night the debate changed with the OLC opinion’s decision to draw a sharp line.

The OLC opinion is a fascinating and important legal document, and in our view it reflects a novel conception of the President’s enforcement authority.  The memo ties the President’s use of his prosecutorial discretion directly to “congressional priorities.”  Again and again, the memo emphasizes the importance of whether a discretionary decision is “consistent with . . . the priorities established by Congress” in the Immigration and Nationality Act.  Where the decision to grant relief tracks priorities reflected in the statute, such as keeping intact the families of citizens and lawful permanent residents, it falls within the zone of discretion. But where the relief cannot be linked to statutory provisions, the executive is constrained.  This is the reason OLC concluded that providing relief to the parents of DACA recipients would not be lawful.

ALSO:  Via Volokh Conspiracy, here is the OLC memo; Ilya Somin comments here.