Monday, April 20, 2015
Immigration Article of the Day: Deferred Action, Supervised Enforcement Discretion, and the Litigation Over Administrative Action on Immigration by Anil Kalhan
Deferred Action, Supervised Enforcement Discretion, and the Litigation Over Administrative Action on Immigration by Anil Kalhan, Drexel University Thomas R. Kline School of Law; University of California, Berkeley - School of Law, Center for the Study of Law and Society April 17, 2015
Abstract: In this Article, I analyze the decision enjoining the Obama administration’s November 2014 immigration actions by U.S. District Judge Andrew Hanen, which highlights an erosion of the conventional lines between litigation, adjudication, and public discourse in politically salient cases. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, the Obama administration’s initiatives enable eligible noncitizens to obtain “deferred action,” a longstanding mechanism by which immigration authorities exercise prosecutorial discretion. Deferred action provides its recipients with nonbinding, revocable notification that officials have deprioritized their removal, and as such confers a highly tenuous form of quasi-legal recognition far short of legal immigration status. In his ruling, however, Judge Hanen elides these legal distinctions to repeatedly mischaracterize the initiatives as providing “legal status.”
With this false statement as a foundational premise, Judge Hanen then incorrectly flays the Obama administration for “circumvent[ing] immigration laws” and “total abdication” of immigration enforcement altogether. These basic factual and legal errors, along with a series of other flaws in the opinion, make the decision entirely continuous with the modes of argument that prevail in political discourse, giving rise to what I describe elsewhere as "judicial truthiness." Accordingly, Judge Hanen's ruling illustrates a broader set of tendencies in litigation involving politically salient issues, in which groups engage the judicial process using politically-oriented modes of argument—even when the gaps between those political arguments and applicable legal principles are considerable—and judges respond in kind by discarding the norms of reasoned adjudication and judicial fact-finding in favor of the contemporary norms of political discourse.
These distortions of the conventional norms of adjudication in turn also distorted Judge Hanen's substantive analysis, causing him to falter in his analysis of the complex issues arising from the government’s establishment of enforcement priorities and prosecutorial discretion guidelines in an era of mass deportation. Ultimately the Obama administration’s initiatives must be understood and evaluated not in abstract terms, but within the specific context of an expansive and fragmented decision-making regime, in which enforcement activities are conducted on a massive scale by a broad array of separate agencies, entities, and officials. As the scale of this enforcement regime has grown to such enormous levels—making the interrelated challenges of ensuring sufficiently uniform execution of the law and fidelity to enforcement priorities more formidable—the need for effective mechanisms to supervise and guide the discretion exercised in the field has only grown more important. However, Judge Hanen’s ruling effectively disables policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore inhibits the agency’s ability not only to channel scarce resources toward its priorities more efficiently and effectively, but also its ability to ensure that in executing the immigration laws, the agency and its personnel heed important rule-of-law values such as uniformity, transparency, accountability, and nonarbitrariness.