Exercising Discretion

The big news of the week is Pres. Trump's decision to end Pres. Obama's DACA program. DACA is the acronym for "Deferred Action for Childhood Arrivals," an immigration policy by which certain undocumented (or "illegal" depending on whom you're talking to) immigrants are spared from deportation provided they fit certain requirements and supply information and also fees to the government. It does not grant citizenship or even legal status on anyone. It could not under current immigration law. It was essentially an agreement between the recipients and the government that the government would not initiate deportation proceedings, which it must do to throw non-citizens out of the country. It also granted work permits so that DACA recipients could legally work and pay taxes. 

Attorney General Jefferson Beauregard Sessions III announced that the program will end in six months, calling upon Congress to address the immigration issues. Sessions said that the Obama policy was unconstitutional because only Congress has the authority to make immigration law. Many have joined in this argument. 

It is true that only Congress has the authority to pass legislation. That includes immigration laws. The executive branch (the president, vice-president and their agencies) is granted the authority and responsibility to enforce the nation's laws. Whether DACA is an unconstitutional act of executive law-making or an exercise in the branch's discretion largely depends on your political preferences. I tend to agree with the latter. 

Law enforcement, from police and other law enforcement officers, up to executives and prosecutors, have discretion in how they enforce laws. Prosecutors are tasked with bringing charges against people in court for criminal offenses. They represent the State (in Connecticut), United States (federal court), Commonwealth (Massachusetts, Pennsylvania, Virginia, Kentucky), People (New York, California), county (in places with county-level offenses) and municipalities. They do not prosecute every offense. There are just not the resources and also not the desire. Prosecuting authorities must use their discretion in what they prioritize and how they interpret the law in enforcing it. Often prosecutors "nolle" (decline to prosecute) charges. Sometimes it's because the defendant did something in exchange for it, such as community service, a program or charitable contribution. Other times it's because they don't think they can prove their case. It is also because they might think that even if they could prove the case, they shouldn't. You will often hear a prosecutor say on the record, "The State is using its discretion and entering a nolle," when dropping a charge. Police also have enforcement priorities. A department could probably put all of its officers in strategic locations on a road and ticket every driver who commits a traffic violation. That might generate a bit of fine money but police have many important things to do and focusing on just one thing might not be worth the loss in service in other areas. 

Immigration laws are enforced by USCIS, which is part of the Department of  Homeland Security, which itself is under the executive branch. Immigration courts are executive branch courts, not judicial branch courts (although they are subject to appeal to federal court).  While it has the authority to initiate deportation against people who did not legally enter the United States, it does not attempt to deport everyone that it could. A lot of that is resources, which are focused on higher priority people, such as those convicted of crimes. It could also be that there are other good reasons to not seek to deport everyone. 

Does the executive branch have the authority to just not enforce anything? The Constitution requires that the president "shall take care that the laws be faithfully executed." A lot rides on "faithfully." Making reasonable enforcement decisions is not the same as ignoring or flaunting the law. Doing so would be an abuse of discretion and likely grounds for impeachment in addition to having political consequences.

I think DACA was constitutional as an exercise of discretion. The federal courts who have heard cases challenging DACA have agreed so far (all have been dismissed). Ending DACA is also a constitutional exercise of discretion. Several states, including Connecticut, New York and Massachusetts, have already filed suit against the Trump administration for the DACA decision. Unless it is mooted by an act of Congress (or the administration's reversal), it will probably meet similar results. 

If you have immigration questions or are a DACA recipient, I suggest you contact an immigration attorney. I know some if you do not. If you have other kinds of legal issues, such as criminal, juvenile, civil or family in Connecticut, then I can help you. 



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