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Saturday, January 23, 2016

Is Lawless Behavior by Street-Level Bureaucrats "More Executive"? The Mystifying Persistence of "Case-by-Case" in the Debate over Prosecutorial Discretion

As everyone knows who follows the debate over the Obama Administration's DACA guidance and whether it violates the "take care" clause, a central issue in the debate has been whether DACA provides for "case-by-case" review of unlawfully present alien's applications for DACA status. The OLC memo on the subject of prosecutorial discretion makes the "case-by-case" character of such review critical to determining whether the executive is unconstitutionally engaging in legislation or permissibly exercising prosecutorial discretion. The Obama Administration's briefs and affidavits and the DACA policy itself proclaim that they permit DHS officials to exercise "case-by-case" discretion in implementing the guidance. The Fifth Circuit's opinion in Texas v. United States affirms the district court's finding that the policy did not have this apparently necessary "case-by-case" quality (albeit not on the constitutional question but rather on the APA question of whether the DACA qualified as a "policy statement" exempt from the obligation to undergo N&C rule-making process).

To all of which I am inclined to say: Why would anyone think that the "case-by-case" character of a policy has anything whatsoever to do with the question of whether it constitutes permissible "executive" discretion or unconstitutional "legislation"? I see no reason to view a policy as any less "executive" in character because it honors rule-of-law values by being a bright-line rule admitting of no exceptions,. Why is lawlessness the hallmark of "executive" action? Is there some purpose to encourage street-level bureaucrats to engage in a little whimsical and unpredictable action, immune from presidential oversight, immanent in Article II? True, prosecutorial discretion often has such a lawless character -- but I took that to be a bug, not a feature.

Adam Cox, my colleague (and former con law student: Damn, I'm old) and Cristina Rodriguez (my former colleague) have asked this question in article-length form in The President and Immigration Law Redux. I reiterate the question just to advertise their contribution and solicit defenses of the opposite position. Unaided by your crowd-sourced wisdom, I am afraid that I cannot fathom the point of protecting opacity in enforcement priorities with constitutional doctrine.

Posted by Rick Hills on January 23, 2016 at 06:13 AM | Permalink


Rick: I agree with you on the N&C question--the courts of appeals have gone astray on this. See also footnote 313 of Adam and Cristina's article. Indeed, that -- the APA question -- is the very context in which the petition begins to de-emphasize the CBC nature of the discretion.

Posted by: Marty Lederman | Jan 23, 2016 12:42:19 PM

Thanks, Marty. I am relieved to hear that CBC has gone by the wayside in the briefs. And, since I have your attention, what do you take to be the relevance of CBC to the section 553 rule-making duty? If there is no CBC discretion under a guidance document but the document does not create any private right and merely purports to be an internal instruction to subordinate officials, would it qualify as policy guidance in your view? Or is CBC necessary to transform a policy into an "interpretative rule"?

My own view is that CBC discretion is neither necessary nor sufficient to transform a policy into an exempt interpretative rule. But my impression is that the case law might lean against my view.

Posted by: Rick Hills | Jan 23, 2016 9:08:25 AM

Also, Rick, I just went back to check the OLC memo. With the odd exception of footnote 8's description of earlier oral advice on DACA, it does *not* conclude that case-by-case discretion is "critical" or necessary. It is at pains to say, time and again, that such case-by-case discretion is merely a wise prophylactic, not a necessity. See especially the second graf on page 8. See also, e.g., pp. 11 ("*avoids the difficulties that might be raised* by a more inflexible prioritization policy and dispels any concern that DHS has either undertaken to rewrite the immigration laws or abdicated its statutory responsibilities with respect to non-priority aliens"), 23 ("The guarantee of individualized, case-by-case review *helps avoid potential concerns* that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief.").

Posted by: Marty Lederman | Jan 23, 2016 6:50:38 AM

I have a sneaking suspicion that meme was a function of the lurking APA question, and the decisions of several courts of appeals (wrongly) suggesting that N&C is required whenever such discretion is taken away from administrating officers. You'll notice that the government is de-emphasizing this point now that it's in the Supreme Court. See page 30 of the petition (http://www.scotusblog.com/wp-content/uploads/2015/11/us-v-texas-petition.pdf), which leads with the "it wouldn't matter if there were no case-by-case discretion by ground-level agents," and only then turns to "In any event, the Guidance expressly requires agents to make discretionary case-by-case decisions" as a fallback.

Posted by: Marty Lederman | Jan 23, 2016 6:40:51 AM

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