Prosecutorial Discretion in Immigration
Enforcement: Legal Issues
a) prosecutorial discretion
1) is commonly used
a) to describe the wide latitude that
i) prosecutors have
ii) in determining
A) when, whom, how, and even whether
I) to prosecute apparent violations of the law.
The Immigration and Naturalization Service (INS) and,
a) later, the Department of Homeland Security (DHS) and
b) its components
1)have historically described themselves
a) as exercising prosecutorial discretion
i) in immigration enforcement.
Some commentators have recently challenged this characterization
a) on the grounds that
i) DHS enforces primarily civil violations, and
ii) some of its components cannot be said
A) to engage in “law enforcement,”
I) as that term is conventionally understood.
a) that do not
i) prosecute or
ii) engage in law enforcement
1) have been recognized
a) as having discretion
i) (sometimes referred to as enforcement discretion)
ii) in determining
A) whether to enforce particular violations.
a) of immigration
1) is commonly said
a) to arise from
i) various powers
A) enumerated in the Constitution
ii) (e.g., naturalization, commerce), as well as
ii) the federal government’s inherent power
A) to control and conduct foreign relations.
Some, although not all,
a) of these powers
1) belong exclusively to Congress, and
2) courts have sometimes described Congress
a) as having “plenary power” over immigration.
a) courts or
1) have addressed the separation of powers
i) Congress and
ii) the President in the field of immigration, and
2) the executive has sometimes been said
a) to share plenary power over immigration
i) with Congress
ii) as one of the “political branches.”
a) to exercise
i) prosecutorial or
1) has traditionally been understood
a) to arise
i) from the Constitution,
ii) not from any congressional delegation
A) of power.
Certain decisions have been widely recognized
a) as within the prosecutorial discretion of immigration officers.
These include deciding
a) whether to initiate removal proceedings and
b) what charges to lodge
i) against the respondent;
i) a Notice to Appear or
ii) other charging document
A) before jurisdiction vests with an immigration judge;
i) deferred action or
ii) extended voluntary departure
A) to an alien
I) otherwise subject to removal (deportation);
e) appealing particular decisions or orders; and
f) imposing fines
i) for particular offenses, among other things.
a) priorities and
b) resources, as well as
1-2) humanitarian concerns,
have typically played a role
a) in determining
i) whether to exercise discretion
A) in individual cases.
the George W. Bush Administration temporarily suspended employer sanctions
1) in areas
a) affected by Hurricane Katrina, and
2) the Obama Administration recently began granting deferred action
a) to certain unauthorized aliens
i) brought to the United States
A) as children.
While the executive branch’s
a) prosecutorial or
1) it is not unfettered, and
2) particular exercises of discretion could potentially be checked
a) by the Constitution, statute, or agency directives.
a) Selective prosecution, or
i) based on race, religion, or the exercise of constitutional rights,
1) is prohibited,
2) although aliens generally cannot assert selective prosecution
a) as a defense to removal.
a) of non-enforcement
i) that amounts to an abdication
A) of an agency’s statutory responsibilities
1) could potentially be said
a) to violate the Take Care Clause.
Take Care Clause
[The President] shall take Care that the Laws be faithfully executed....
ARTICLE II, SECTION 3
The Take Care Clause
a) (also known as the Faithful Execution Clause)
1) is best read
a) as a duty that qualifies the President's executive power.
By virtue of his executive power,
the President may
a) execute the lawful and
b) control the lawful
i) execution of others.
Under the Take Care Clause, however,
the President must exercise his law-execution power
a) to "take Care that
i) the Laws be faithfully executed."
Though the clause's antecedents can be traced as far back as the late seventeenth century, its more immediate predecessors were found in the 1776 Pennsylvania Constitution and the 1777 New York Constitution.
Both Constitutions granted their respective executives the "executive power" and also required them to execute the laws faithfully.
Accordingly, the Pennsylvania and New York state executives understood that it was they, and not others, who were to see that the laws were faithfully executed.
The ratifying debates repeatedly evince the notion that the President had a duty to execute the law faithfully. Addressing the North Carolina ratifying convention, William Maclaine declared that the Faithful Execution Clause was "one of the [Constitution's] best provisions." If the President "takes care to see the laws faithfully executed, it will be more than is done in any government on the continent; for I will venture to say that our government, and those of the other states, are, with respect to the execution of the laws, in many respects mere ciphers." Not surprisingly, President George Washington clearly read the clause as imposing on him a unique duty to ensure the execution of federal law. Discussing a tax rebellion, Washington observed, "it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to" that duty.
To be sure, the extent of the faithful-execution duty is rather unclear. Plainly, the President need not enforce every law to its fullest extent. Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution. Moreover, the pardon power (see Article II, Section 2, Clause 1) supplies a constitutional reason for concluding that the President need not enforce the law every time he feels there is a violation, for, notwithstanding his faithful-execution duty, the President may pardon an offense even before a trial or conviction. It is also possible that the clause does nothing more than incorporate the English Bill of Rights provisions that forbade the Crown from dispensing or suspending the law. Under this reading of the clause, the President can neither authorize violations of the law (he cannot issue dispensations) nor can he nullify a law (he cannot suspend its operation). He has, nonetheless, very wide discretion in enforcing the criminal law.
Those opposed to a strong executive have offered alternative ways of construing the Take Care Clause. On one view, the clause merely requires that the President oversee those statutorily charged with executing law, and does not assume that the President may control law execution. In other words, rather than controlling law execution, the President is limited to the narrow power of ensuring faithful law execution by others. A more extreme construction suggests that the President must obey even those statutes that forbid him from overseeing law execution. Thus, if a tax statute bars presidential oversight with respect to its execution, the President must take care to heed that statutory constraint on presidential power.
Each of these alternate readings of the clause is problematic. The first reading runs afoul of historical evidence. Both English and American experience support reading the Executive Vesting Clause (Article II, Section 1, Clause 1) as enabling the President to execute the law and to control the law execution of others. Given this understanding of the Executive Vesting Clause, the Take Care Clause should not be read to limit the President to the role of an aloof overseer of law execution. Consistent with this view, contemporaneous discussions of the Take Care Clause emphasize the President's power over law execution; they do not support the claim that the President's law-execution role is one limited to ensuring faithful execution by others. Furthermore, there is no historical evidence supporting the notion that Congress can use the faithful-execution duty as a means by which it may strip away any presidential prerogative, let alone the executive's essential task of executing the laws. Such a reading would make the Constitution's Executive Vesting Clause surplusage and would undermine the Constitution's separation of powers.
The Take Care Clause has played a limited role in constitutional litigation.
the Supreme Court observed that
a) in faithfully executing the law,
b) "[the President] is bound
i) to avail himself of every appropriate means
A) not forbidden by law."
United States v. Tingey.
And from time to time,
the Supreme Court will cite the clause
a) in passing
1) when discussing the President's duties and powers.
Since the New Deal, however,
the Supreme Court has sanctioned the creation
a) of independent agencies,
i) which operate
A) as a fourth branch of government.
Among other things,
these independent agencies execute various federal laws
a) (communications, banking, securities)
b) by investigating and arranging
i) for the prosecution of alleged lawbreakers.
Restrictions on removal, and a tradition of independence, often make it impossible
a) for the President to ensure that
i) the independent agencies faithfully execute the law.
with respect to the laws
a) that the independent agencies execute,
1) the President does not take care that
a) such laws are faithfully executed.
As noted earlier, the President possesses wide discretion in deciding how and even when to enforce laws. He also has a range of interpretive discretion in deciding the meaning of laws he must execute. When an appropriation provides discretion, the President can gauge when and how appropriated moneys can be spent most efficiently. However, the President may not prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon him by Congress. Marbury v. Madison (1803); Kendall v. United States ex rel. Stokes (1838). Nor may the President take an action not authorized either by the Constitution or by a lawful statute. Youngstown Sheet & Tube Co. v. Sawyer (1952). Finally, the President may not refuse to enforce a constitutional law, or "cancel" certain appropriations, for that would amount to an extra-constitutional veto or suspension power.
With respect to congressional appropriations, presidents from Thomas Jefferson onward have asserted a power to impound funds. In Jefferson's case, he refused to spend money on purchasing gunboats, saying that they were not immediately needed, and that he was awaiting a better design. Beginning with President Franklin D. Roosevelt, however, the executive began to withhold spending for some objects altogether. President Richard M. Nixon expanded that practice to the fullest, refusing to spend on many programs for budgetary and fiscal reasons. Sometimes the executive branch has argued that this impoundment power flows from the Executive Vesting and/or Take Care Clauses. Other times, it has claimed that the appropriation statutes themselves granted the President the discretion to impound sums appropriated. Impoundment opponents have often cited the Take Care Clause as a reason why impoundments are unconstitutional, at least where Congress has made it clear that it expects the entire sums appropriated to be expended. In the wake of the impoundment controversies of the 1970s when federal courts struck down President Nixon's attempt to impound funds, see Train v. City of New York (1975), Congress enacted a more restrictive impoundment framework. To date, no President has argued that the framework amounts to an unconstitutional limitation on a broader impoundment power arising out of the Constitution.
In modern times, the Take Care Clause has been cited most frequently (sometimes in dissent) as a reason for strictly enforcing Article III's case or controversy requirement. To the extent that the judiciary allows plaintiffs without "standing" to prosecute allegedly illegal activity, the judiciary may be usurping the President's Take Care duty. Unlike the executive, the judiciary does not have a roving commission to ensure faithful law execution. Accordingly, some members of the Court have claimed that the Take Care Clause has negative implications for the judiciary's role in law execution; that is, while the executive has a general commission to execute the laws, the judiciary may only vindicate the laws when there is a proper case or controversy before them.
standing to challenge alleged violations
a) of the Take Care Clause
1) may be limited, and
2) no court appears
a) to have invalidated a policy
i) of non-enforcement
ii) founded upon prosecutorial discretion
iii) on the grounds that
A) the policy violated the Take Care Clause.
Non-enforcement of particular laws could also potentially be challenged
a) under the Administrative Procedure Act
1) if a statute provides specific guidelines
a) for the agency to follow
i) in exercising its enforcement powers.
an agency could potentially be found
a) to have constrained its own discretion,
1) as some courts found that
a) the INS had done in the 1970s
i) with its operating instruction
A) on deferred action.