Notice & Comment

DACA, Faithful Execution, and the Virtues of Transparency: A Response to Professor Price, by Peter M. Shane

Professor Zachary Price recently posted an essay arguing that a Trump Administration loss in the DACA repeal case would have “long-term implications . . . quite adverse to progressive goals.” Given his record of thoughtful scholarly articles about the legal and policy issues surrounding the deliberate underenforcement of law, it is not surprising that Professor Price continues to makes points that the liberal administrative law world should consider carefully. He may well be right, for example, that “permissive regulatory policies and enforcement practices that effectively excuse ongoing violations . . . are if anything more likely to come from Republican presidential administrations than Democratic ones.” It does not follow, however, that progressives should welcome judicial skepticism of policy initiatives like DACA.

I should state at the outset that I think DACA itself was lawful. The Immigration and Nationality Act places the Secretary of Homeland Security “in charge of the administration and enforcement of . . . all . . . laws relating to the immigration and naturalization of aliens.”  It gives him or her a wide range of tools to carry out that authority: “He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”  And, in case the point needed reinforcement, the Homeland Security Act of 2002 includes among the Secretary’s authorities “[e]stablishing national immigration enforcement policies and priorities.”  Given that deferred action was a recognized tool of immigration policy when Congress enacted the Homeland Security Act—and the rationales for DACA are plainly nonarbitrary—I believe it follows that DACA was a permissible implementation of the Secretary’s statutory authorities.

Whether or not that conclusion is correct, however, my analysis highlights one peculiarity regarding debates over DACA—namely, the oddity of treating the initiative as a form of legal nonenforcement. The Obama Administration, far from failing to implement the INA, processed the forcible removal of aliens from the United States in record numbers. DACA was an explicit carve-out of a group of potentially removable aliens whom the Secretary regarded as low priority for removal. Moreover, regularizing the availability of deferred action to this particular class of aliens offered the prospect of positive impacts not only for deferred action recipients and their families, but also for local law enforcement and the economy in general.

Professor Price is uneasy about DACA precisely because he sees it as an explicit commitment to underenforcement of the INA. In other writing taking into account not only the Faithful Execution Clause, but also the president’s pardon power and “deeply rooted normative expectations about separation of powers,” he offers “dual presumptions” that provide a framework for assessing the legitimacy of decisions to underenforce the law. The first is a presumption that the executive branch may “declin[e] enforcement in particular cases where executive officials believe punishment is either factually or morally unwarranted.” That presumption would be limited by the second, which is that “executive officials lack inherent authority either to prospectively license statutory violations or to categorically suspend enforcement of statutes for policy reasons.”  The direct impact of adopting the Price approach would thus be to cast “presumptive” doubt on the vast majority of episodes of programmatic nonenforcement like DACA.

As I argue in a forthcoming article, however, Professor Price’s presumptions ignore constitutional values we associate with due process. No one contests the authority of the DHS Secretary to grant deferred action on an individualized basis. But individualized discretion can appear as a threat to liberty and the rule of law to the extent case-by-case decision making allows like cases to be treated differently without adequate justification. Individualized exercises of discretion typically have lower visibility, posing risks to both transparency and accountability. The arbitrary exercise of government power is equally offensive to constitutional fairness values whether it takes the form of general rules applied with a rigor that is oblivious to individual circumstance or embodied in the exercise of case-by-case judgment deployed capriciously.

In his recent blog post, Professor Price writes:

To its credit, the [Trump] administration generally has not formalized its lax enforcement practices as explicit policies; it has simply de-prioritized enforcement of laws it disfavors.  Just this week, however, the administration got in the game in a big way:  it issued a “notice of nonenforcement” indicating that it will no longer enforce regulations barring discrimination on the basis of sexual orientation, gender-identity, or religion by entities receiving some $500 billion in annual federal health-related grants.

From a rule-of-law point of view, however, I would argue that Professor Price gives credit exactly backwards. The underenforcement of law is inevitable in a world of limited resources, and so the informal or tacit setting of priorities often escapes public attention and accountability. By informally “de-prioritiz[ing] enforcement of laws it disfavors,” the Administration leaves it to Congress or investigative reporters to figure out how the law is actually being implemented. By way of contrast, a “notice of nonenforcement” presumably has the salutary effects of coordinating a complex bureaucracy around a single policy and exposing that policy to Congress, the courts, and the public. If an Administration is going to forego enforcing antidiscrimination law on a categorical basis—a policy much to be condemned—we are better served if the policy is at least made explicit and thus subject to greater oversight and more effective challenge.

Professor Price again could be correct in predicting that a Trump Administration loss in ending DACA might invite other DACA-like policy statements that explicitly de-prioritize certain targets of potential law enforcement. Professor Price’s conclusion, however, that “a progressive loss [over DACA] could ensure greater flexibility for pro-regulatory policy in the future,” does not follow. A progressive win over DACA might or might not have broad implications across policy domains other than immigration, but, if it does, those implications might point in the direction of greater transparency and accountability for the selective enforcement or nonenforcement of federal law—a direction much to be favored regardless of the party in power.

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at The Ohio State University Moritz College of Law.