Binding the Enforcers: The Administrative Law Struggle Behind Pres. Obama's Immigration Actions

Abstract

President Obama’s ambitious use of executive discretion in immigration – especially the DACA and DAPA programs – should be understood in context of a struggle within the executive branch between the President and frontline enforcement officers in the Department of Homeland Security who have actively resisted his policy agenda. The so far successful litigation by 26 states to partially halt these programs has focused on this struggle within the executive branch, rather than on the stalemate between the President and Congress over legislative immigration reform. In preliminary rulings, the federal district court and the Court of Appeals have interpreted ambiguous provisions of the Administrative Procedure Act to require a cumbersome notice and comment process in order for the President and the heads of immigration enforcement agencies to provide binding instructions to frontline enforcement officers about how to exercise discretion in individual cases. This article argues that interpreting the APA in this manner is unnecessary and thwarts the ability of elected leaders to direct the operations of government, and thus insulates law enforcement from change through the democratic process. Prosecutorial discretion requires judgment calls, and these decisions should be made as much as possible in a manner that renders them accountable to voters. To illustrate the need for elected officials to be able to direct their subordinates, this article draws analogies to conservative critiques of public sector unions, and to First Amendment case law involving public employees.