The Inseparability of Policy Considerations and Resource Considerations in Federal Immigration and Marijuana Enforcement

by Michael Dorf

I begin by establishing my disinterested bona fides with respect to the dispute about whether the president has authority to defer deportation of, and other enforcement measures against, undocumented immigrants in certain favored categories. I do not consider myself an expert in immigration law and I shall try to set aside whatever views I might hold about immigration policy, which are, in any event, only those of a reasonably well informed citizen rather than an expert.

Back in December 2012, Prof. Buchanan and I wrote the following in one of our debt ceiling papers:

we find deeply troubling any suggestion that the president can simply choose not to enforce some law on the ground that he disagrees with the policy underlying that law. At a minimum, we would expect the president to offer some justification for not enforcing a law. With respect to marijuana possession and deferred action on unlawful immigration, the Obama Administration has invoked the traditional prosecutorial discretion that the executive branch enjoys in such matters. Perhaps that argument is persuasive; perhaps it is not.

What would make the argument more or less persuasive? I shall mostly consider immigration but I'll then double back to marijuana.

(1) It is possible to argue that the president has inherent authority to choose not to enforce any law he doesn't want to enforce for just about any reason. Professor Eric Posner arguably flirted with this idea back in August in response to a Ross Douthat NY Times piece, but even there, I think Posner was better read as making the much more modest claim that the president has prosecutorial discretion to allocate enforcement resources to the most serious offenses. Certainly that is the tune he is singing more recently.

(2) In any event and more importantly, the Obama Administration has not claimed anything other than prosecutorial discretion. The Office of Legal Counsel (OLC) memo that provides the legal justification for the new policy (and for the limits on the new policy) begins (after some throat clearing) as follows:

As a general rule, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and it reflects a recognition that the “faithful[]” execution of the law does not necessarily entail “act[ing] against each technical violation of the statute” that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985).

After some further discussion, the memo then sets out four principles that govern the exercise of this discretion. They are: (i) Congress can limit the executive branch's prosecutorial discretion; (ii) "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"; (iii) "the Executive Branch ordinarily cannot, as the Court put it in Chaney, 'consciously and expressly adopt[] a general policy that is so extreme as to amount to an abdication of its statutory responsibilities' "; and (iv) "non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis."

The memo approves what became the Obama policy by characterizing it as an effort to assign priority to the 400,000 undocumented immigrants who can be removed with the allocated resources out of the 11.3 million who are present in the country. The policy satisfies principles (i)-(iii) because it broadly conforms to priorities set by Congress. It satisfies principle (iv) because it "provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases."

(3)  In an intriguing post for a terrific symposium on Balkinization, Adam Cox and Cristina Rodriguez disagree with what they take to be a judgment in the OLC memo that Congress provides the principles that guide prosecutorial discretion. They argue that both in general and with respect to immigration policy, the exercise of prosecutorial discretion has been and legitimately should be guided by factors going beyond those articulated by the legislature. As they note, "prosecutors talk often of the fact that their job is to do justice, not scrutinize the criminal code for answers."

Although I agree with the Cox/Rodriguez position, I'm not sure that they offer a fair criticism of the OLC memo. As noted above in (2), the general criteria espoused in the memo do not say that the principles guiding prosecutorial discretion must be derived from congressional policy; they only say that the exercise of prosecutorial discretion must not contradict congressional policy. It's true, as Cox and Rodriguez note, that  the memo roots the policy of family unification in statutory provisions, but that's just overkill. Guidelines for the exercise of prosecutorial discretion that are derived from a statute enacted by Congress will surely be consistent with congressional policy. And that is all that the memo really says is necessary.

(4) I nonetheless think that Cox and Rodriguez are onto something fundamentally true in pointing to the inevitability of policy discretion in any exercise of prosecutorial discretion. Consider the decision of the Obama Administration to step back from enforcement of federal marijuana laws in states that have legalized medical or recreational marijuana. The August 2013 Justice Dep't memo on the topic is very clever. It notes that traditionally the feds have focused on trafficking, while leaving possession offenses to state enforcement. Even with states legalizing individual possession, the memo says that the feds can continue to focus on distribution-type offenses, because DOJ expects "that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems," and that these systems will ensure that state-legalized marijuana will not pose a threat to federal enforcement priorities.

Yet federal law forbids not only distribution but also possession of marijuana--even in small quantities for personal use, including medical use. The prior regime of federal (mostly) non-enforcement of the prohibition of mere possession of personal use quantities was based on a division of labor: the state and local authorities would be better at doing that. But once states legalized such use, that rationale no longer applied. The new rationale comes perilously close to violating pirnciple (iii) of the immigration memo: abdicating statutory responsibilities.

Suppose that a state legalizes hate crimes. If the DOJ had previously relied on state prosecutors to go after low-level hate crimes while saving its resources for a sub-category of federal law consisting of more serious hate crimes, wouldn't the state's legalization decision be a reason for the DOJ to devote more resources to enforcement efforts in that state, not fewer, as with the marijuana example? What's the difference?

I think the obvious answer is that the Obama Administration (like any administration, one hopes) is more sympathetic to low-level marijuana possession than to low-level hate crimes. Even if one thinks that the decision to focus attention on traffickers is permissibly rooted in judgments about how best to marshall resources, those judgments are closely related to normative judgments about the relative importance or even wisdom of various provisions of law.

(5) And that was all pretty obvious in President Obama's announcement of his immigration policy. His argument is not that it's regrettable that the government lacks the resources to deport all 11.3 million undocumented immigrants but that's the triage he must perform to best use the limited resources Congress has given him. His argument instead is that the law ought not to permit, much less require, deportation, for millions of people in that group. Hostility to certain aspects of the law is, in this instance and many others, part and parcel of the exercise of prosecutorial discretion on ostensible grounds of scarce enforcement resources.

(6) Having said all of that, I doubt that anyone has standing to challenge the exercise of prosecutorial discretion--although standing doctrine is notoriously manipulable for ideological ends. Even assuming a justiciable case could be brought, I think that the inevitability of wide-ranging policy considerations in the exercise of prosecutorial discretion should make it very hard for a court to say that a president has, in the guise of triaging resources, really just abdicated his responsibility under the Take Care Clause.

But that doesn't mean that the president has no duty under the Take Care Clause. Here, as elsewhere, the Constitution may limit a president's options even if no court will enforce those limits. Whether President Obama has transgressed those limits seems to me a closer question than partisans on either side have acknowledged. To my mind, the judicially unenforceable constitutional norm goes something like this: A president may not use considerations of resource allocation merely as a pretext for undermining a law that he would prefer to simply not enforce regardless of resources.

It's hard to know whether President Obama has violated that norm because so much of his political rhetoric that sounds in naked abdication--such as "we can't wait"--is, after all, political rhetoric. Insofar as the more limited and sober OLC memo formed the real basis for the shape of the ultimate policy, the president may be able to say that the rhetoric was always just puffery. Of course, if I'm right that any court challenge would not get past a motion to dismiss, he need only make this excuse to himself and to the court of public opinion.

How this will ultimately play out politically remains to be seen, but my money is on Obama "winning" this confrontation for two reasons. First, the public tends to focus more on the substantive merits of a policy than what we lawyers see as battles over basic structural principles like separation of powers or federalism; the fact that much of the Republican opposition to the policy is procedural is something of a concession that he will win the policy debate. And second, much of the opposition to Obama's policy is over the top.

As I've explained here, there is a legitimate question of whether this policy and many others pursued in the past by presidents of both parties push the notion of prosecutorial discretion too far; and a genuine assertion of power to exercise prosecutorial discretion not to enforce a law at all in the face of a contrary congressional judgment would be a serious threat to separation of powers. So to the extent that Obama's immigration policy ends up being used politically as a precedent for truly dangerous executive overreach by a future (Republican or Democratic) president, I worry that my friends who signed a scholars' letter that makes the same sorts of measured arguments found in the OLC memo may live to regret doing so.