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Saturday, January 23, 2016

"Affirmative" Benefits versus "Negative" Non-Prosecution: May the President Provide Former When It's Necessary & Proper for the Latter?

The Fifth Circuit's decision in Texas v. United States distinguishes the Obama Administration's DAPA policy from ordinary executive decisions not to prosecute on the ground that the former provide "affirmative benefits"-- work authorization -- rather than mere "negative" prosecutorial inaction. "Negative" refusal to prosecute is generally immune from judicial review under APA section 701(a)(2), becase it is "committed to agency discretion by law" under Heckler v. Chaney. "Affirmative" decisions to (for instance) extend work authorization and trigger accompanying benefits like unemployment insurance are said to be quite different (see page 36 of Texas v. United States).

This "affirmative"/"negative" distinction, however, runs against one practical obstacle: No president could sensibly or practically adopt a decision not to prosecute certain categories of offenders without providing those offenders with at least some "affirmative" protections. The latter, therefore, can be said to be "necessary and proper" for implementing the president's undoubted Article II power of prosecutorial discretion.

The point can be illustrated by the Treasury Department's guidance on banks' accepting deposits from marijuana-related businesses. The guidance seems awfully similar to work authorization under DAPA: It allows banks to engage in actions flatly forbidden by federal money laundering laws, not merely by "negatively" refusing to enforce those laws against banks but by "affirmatively" providing a safe harbor for banks that meet the guidance's criteria. The guidance has inspired mighty little opposition from those who seem otherwise perturbed by DAPA. (Texas v. United States does not discuss FinCEN's banking guidance at all, even though Judge Smith distinguishes DAPA from the Cole Memo defining non-prosecution marijuana-related businesses at footnote 101. Senator Charles Grassley complained that the guidance violated the Take Care clause, but his complaint has gotten no traction with others).

One reason might be that the relationship between banking guidance and federal non-prosecution of marijuana-relatd businesses in Colorado seems as tight as a rusty nut and bolt. Allowing marijuana-related business to operate free from criminal prosecution but not allowing them to park their cash in safe and sound banks is an invitation to chaos and thievery. If the former policy is legitimate prosecutorial discretion, then the latter is surely necessary and proper to implement the former. But note that precisely the same argument justifies DAPA: Bringing unlawfully present persons covered by DAPA out of the legal shadows seems just as practically necessary for sustaining DAPA's non-prosecution as bringing pot money into bank vaults.

Against this reasoning, one might make (1) a text-based argument that Article II contains no "necessary and proper" clause and (2) a more functional argument that, by making it practically onerous to engage in non-prosecution, the absence of such an implied N&P executive power deters de facto presidential law-making. After the jump, I will offer a couple of reasons why these arguments seem thin to me.

As to the absence of a N&P clause in Article II, I have the same argument as McCulloch: The presence of that clause in Article I being unnecessary for Congress to have an implied power to make effective its enumerated powers, the absence of the clause in Article II is not fatal to the President's enjoying a similar implied power to make practically sane what the President can legally pursue.

What about the idea that Congress-defying and unconstitutional non-prosecution is deterred by barring the executive's "affirmative" implementation of non-prosecution policies? I would be reluctant to attributes to Congress a very, very silly policy absent pretty clear statutory language -- and barring the President from mitigating the collateral damage arising out of his non-prosecution policies seems pretty silly.

Of course, if Congress wanted to do so, it could certainly enact a law barring such "affirmative" implementation. Congress could, for instance, amend the money laundering laws to clarify that it preferred to have marijuana-related businesses stash bags of cash under beds rather than keep the money safe in a bank vault. Likewise, Congress could certainly enact the "Terrorize Illegal Aliens With Employer Exploitation Act" ("TIAWEEA"), barring any work authorization for people who, because of scarce prosecutorial resources, remain in the country regardless of the lawfulness of their presence here. I guess that the idea behind such a statute might be to encourage "self-deportation" by forcing unlawfully present persons to work in the shadows, practically unprotected by safety, anti-discrimination, and wage and hours laws for fear of filing complaints and inviting deportation.

But Congress has not enacted any such statute, and there is no reason to attribute such a bizarrely cruel policy to Congress absent some actual statutory text. It is not faithful execution of the laws for the President to enforce those laws regardless of collateral damage. Just as the Constitution is normally construed to have safety valves (recall all of those "necessary-for-compelling-purposes" escape hatches from even the strictest of scrutiny), so too, statutes should not be construed to be suicide pacts absent text to the contrary.

So I am inclined to regard the "affirmative"/"negative" distinction as a red herring. But I am happy to be corrected -- and my students (to whom I am teaching this stuff in Leg-Reg this term) will thank you for your ripostes that they might be too shy to make.

Posted by Rick Hills on January 23, 2016 at 08:08 AM | Permalink


This argument is pretty far-fetched. The president has vast unfettered discretion not to prosecute criminals. If there's some small subset of criminals for whom he might not want to defer prosecution because he lacks the power to ensure that other bad things won't happen to the criminals, well, tough luck.

Posted by: Douglas Levene | Jan 24, 2016 1:51:35 AM

Actually, Rick, I agree with most of that! And stated as such, I don't think it's at all misconceived. Indeed, I think we're on more or less the same page, except perhaps that I don't think invoking the Constitution adds anything (and in this case, the atmospherics of the Constitution and the TC Clause, in particular, have had an unfortunate effect of confusing the issues -- see my several posts on this point).

Your point No. 1, about Heckler, simply notes the Court's reference to the fact that it is the Executive, under the Constitution, that executes the laws (the "Take Care" clause, as such, is a bit out of place, because it creates a presidential duty, not a duty of the FDA Commissioner), and that such execution almost invariably requires some level of enforcement discretion--or a background presumption of such discretion, anyway, unless and until Congress cabins it. That is absolutely the case. I was simply trying to clarify, contrary to the common descriptions of the case, that there's no assertion in the DAPA case of any constitutional *authority* by the executive, let alone an authority to disregard or circumvent statutes.

Your stronger claim -- that such enforcement discretion brings with it some sort of authority to grant "benefits" to those who are not prosecuted, including the authority to absolve them of violations of the law, or to turn unlawful conduct into lawful conduct -- is a harder sell, and the one point on which we might disagree. I don't think one can find that power in the Constitution (certainly not as to the Secretary of DHS!), or that it is an ordinary background norm of prosecutorial discretion against which Congress legislates.

And so, in the DAPA setting, I *don't* think that Jeh Johnson would have had the authority, in the teeth of IRCA's prohibition, to empower employers to hire aliens who have not been authorized to be in the U.S., unless Congress had in effect made a decision to allow the AG (now Secretary) to designate certain aliens as being lawful to hire.

That brings us to Points 2-4, which are about the *merits* of the Reagan-era regulation, i.e., about whether Congress did, in fact, empower the AG/Sec. to effectively allow employers to hire designated aliens. You are correct -- I have not thus far offered a comprehensive substantive defense of that position, other than to offer the arguments you mention, namely, (i) that the text appears to grant such authority; and (ii) that Congress has in effect ratified it over the course of 30+ years; as well that (iii) the Texas/Smith view would invalidate *many* categories of work-authorized aliens who have been hired over the past 30 years, not only DAPA aliens; and that (iv) contrary to Smith's view, giving the Secretary such authority *makes a great deal of sense,* for precisely the sorts of functional and practical reasons you describe.

That's quite a lot, I think; but I agree that, now that the DAPA case has focused on this question, the government ought to do more to demonstrate that this reading is consistent with Congress's intent in IRCA and subsequent statutes. (I have not myself studied IRCA sufficiently to yet add anything else myself.)

I am, however, fairly confident that the Court won't reject the government's reading on non-delegation grounds! As with much of the immigration law, the Secretary is instructed to make rules based upon a wide array of considerations and congressional objectives, something that is certainly constitutional unless the Court were inclined to revive Schecter Poultry and Panama Refining.

So you see, we're largely in agreement! Thanks for the opportunity to clarify.

Posted by: Marty Lederman | Jan 23, 2016 6:06:23 PM

Marty writes:

"Unlike your earlier two or three posts on the DAPA case, I'm afraid this one is beset by misconceptions and category mistakes that make it much harder to understand just what's at issue in the case."

Well...maybe. Or maybe we just have different ideas about the relevant categories. So let me suggest an understanding of the case that might not as misconceived as you say it is, in what I hope are four non-misconceived and easy-to-understand paragraphs.

1. First, Let's start with Heckler v. Chaney. You say that Heckler "didn't involve any Article II question." But this ignores Heckler's reasons for adopting a narrow view of reviewability under APA section 701. Heckler adopted a presumption about "the general unsuitability for judicial review of agency decisions to refuse enforcement" (Heckler v. Chaney, 470 U.S. at 831) based on the stated belief that "an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict -- a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.' U.S.Const., Art. II, § 3." How can you say that Heckler's method of construing the APA did not involve any Article II question in light of this language about "the special province of the Executive Branch" under Article II?

2. You treat this case as an "ordinary" matter of statutory interpretation by relying on seven words in the definition section of IRCA, 8 U.S.C. § 1324a(h)(3), which excludes from the definition of "unauthorized alien" those aliens who are “authorized to be . . . employed ... by the Attorney General.” You construe these seven words to delegate broad discretion on the Attorney General to issue work authorizations to aliens. But I could see an ornery judge taking a different view, arguing that these seven words should not be construed so broadly, because such a delegation of power is unconfined by any intelligible principle and transforms the AG into a mini-legislature. Citing decisions like Indus. Union Dept. v. Amer. Petroleum Inst., 448 U.S. 607 (1980) and FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000), such a judge might adopt a narrower view of these bare seven words. Indeed, this is precisely what Judge Smith did in Texas v. United States at page 59 and note 178.

3. What exactly is your response to Judge Smith on this question of construing section 1324a(h)(3) broadly or narrowly? You note in your Balkinization post (http://balkin.blogspot.com/2015/11/texas-v-united-states-fifth-circuit.html ) that Judge Smith’s skepticism about your broad reading of section 1324a(h)(3) “amounts to a full-throated rejection of 30+ years of agency rulemaking pursuant to the Secretary's authority under § 1324a(h)(3) -- rulemaking that Congress has not questioned in those three decades.” That’s a pretty good argument from a sort of Midwest Oil-style prescription: The President has been doing this sort of thing for a long time without Congress’ objecting, so the Court ought to presume a sort of congressional acquiescence. As Midwest Oil puts it, you are invoking “a wise and quieting rule that, in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itself.” But note that Ruckus Lamar’s opinion in Midwest Oil ALSO rested on the idea that “the land laws are not of a legislative character in the highest sense of the term,” because managing proprietary matters requires constant attention to detail that Congress cannot be expected to exercise. Put another way, Midwest Oil’s reliance on congressional acquiescence was reinforced by the peculiarly “executive” character of President Taft’s effort to manage federal land, a power close to the core of what Henry Monaghan calls the “protective power” of the President.

4. My own argument about an implied affirmative power is nothing more than this idea that, in construing an ambiguous statutory phrase, one might be more willing to infer that it confers broad powers on the executive if those powers bear some close relationship to “traditional” executive prerogatives. I do not think that it is inconsistent with your argument based on congressional acquiescence to invoke the tight relationship between the discretion of the executive authority to decide which aliens to remove, or not to remove, at any given time – a discretion that Heckler places within “the special province of the executive branch” – and this challenged power to grant work authorizations. Put another way, if one believes that (1) decisions about non-prosecution are squarely within the “special province” of the executive and (2) those conventionally executive decisions become much more costly when the persons who are not removed are left without legal capacity to support themselves, then one might also believe that (3) Congress’ respect for the “special province of the executive” not to deport otherwise unlawfully present aliens might also induce Congress to confer broad discretion on the AG to grant work authorizations.

Why do you think that such an argument is misconceived or based on “category mistakes”?

Posted by: Rick Hills | Jan 23, 2016 5:17:49 PM

Rick: Unlike your earlier two or three posts on the DAPA case, I'm afraid this one is beset by misconceptions and category mistakes that make it much harder to understand just what's at issue in the case. In the end, though, you hit upon one of the key points that explains why the government's argument here is reasonable and correct.

1. It's not about Article II at all, or the President, for that matter: The case turns simply on what sort of discretion Congress has conferred upon the Secretary of DHS, Jeh Johnson, to implement the immigration laws. In this sense, it's just like Heckler v. Cheney, which likewise didn't involve any Article II question.

2. It certainly doesn't implicate any hypothetical, implicit Art. II "necessary and proper" power.

3. You assume that the President [read: Sec. Johnson] could not "sensibly or practically adopt a decision not to prosecute certain categories of [aliens] without providing those [aliens] with at least some 'affirmative' protections," such as the one at issue here -- work authorization. That's not true. For example, when DOJ announced that it wouldn't prosecute most marijuana possessors in Colorado, it did not give them any "benefits"--it didn't provide them with pot, or even give them immunity against future prosecution for their possession. In this case, likewise, of course the Secretary could decline to provide any affirmative benefits -- just as you concede Congress could do. Indeed, the baseline rule of IRCA -- that employers can't hire aliens who are not authorized to be in the U.S. -- is exactly such a rule. Congress *could have* left it at that. But instead, it wisely gave the Secretary the authority to allow some such aliens to be hired. (More on this below.)

4. For what it's worth, I do *not* read the Treasury guidance to "allow banks to engage in actions flatly forbidden by federal money laundering laws, not merely by 'negatively' refusing to enforce those laws against banks but by 'affirmatively' providing a safe harbor for banks that meet the guidance's criteria." To the contrary. The Treasury would not have the power (far as I know) to give banks such a safe harbor, or to permit them do what is otherwise unlawful, and the guidance does nothing of the sort (at least, not on its face).

More to the point, the DAPA policy does nothing of the sort here, at least as to aliens (rather than employers). It does not turn any unlawful conduct by aliens into lawful conduct, give them any guarantee that they will not be penalized for any unlawful conduct, or even guarantee them that they won't be removed tomorrow.

However, for those DAPA aliens who are then afforded "work authorization," that ancillary step *does* have a law-altering effect: It makes it lawful for an employer to hire such an alien, whereas previously such a hire was unlawful. And that is a function, not of Jeh Johnson's DAPA Guidance, or of any specific congressional action, but instead of the regulation promulgated by Reagan's INS in 1986/87, which is now the principal target in Texas's cross-hairs.

5. This gets to the important respect in which you're right: Texas's whole argument -- and Judge Smith's -- is that this is absurd, because IRCA can only be read to prohibit employers from hiring such aliens, with the singular goal of protecting the jobs of U.S. citizens and lawfully admitted aliens. Therefore, this argument runs, it's absurd to attribute to Congress an intent to give the AG (now the Secretary) the authority to effectively allow employers to make such hires, except to the extent that Congress itself has identified categories of aliens who can be hired.

This was FAIR's argument to the INS in 1986, which the agency rightly rejected. And the Court ought to reject it now, for exactly the reasons you suggest -- because Congress and the Executive have jointly realized, for many decades, that it makes much more sense to allow at least some aliens in the U.S. without authorization -- those who are unlikely to leave anytime soon -- to work "above board," rather than to either work in an underground economy or to not work and thereby impose a heavy burden their family members. For this reason, Congress gave the AG (Sec.) a "release valve" authority, of sorts, to identify aliens who could lawfully be hired.

Therefore, although there's nothing at all illogical about the affirmative/negative distinction, and no reason that nonenforcement authority could not be disaggregated from affirmative benefits in many contexts, you are right that in *this* case, Congress and the agency have never insisted on such a categorical disaggregation . . . and for good reason.

Posted by: Marty Lederman | Jan 23, 2016 12:38:00 PM

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