Enforcement Policy is a Political Question in United States v. Texas, by Zachary Price
Next week, the Supreme Court will hear arguments in United States v. Texas, a suit challenging the Biden Administration’s current immigration enforcement priorities. The Court should reject this challenge for reasons I outlined in a 2016 article. Although the administration’s policy may fall short of ideal faithful execution of federal law, its deficiencies present a form of political question that courts lack manageable standards to redress.
The policy at issue in the case establishes three priorities for “apprehension and removal of noncitizens” by the Department of Homeland Security: threats to national security, threats to public safety, and threats to immediate border security. The policy states that “[t]he fact that an individual is a removable noncitizen . . . should not alone be the basis for an enforcement action against them,” and its introductory section emphasizes the contributions that many immigrants make to American society despite lacking lawful status. Presumably to limit enforcement outside its stated priorities, the policy establishes an internal review process enabling immigrants to challenge line-level enforcement decisions. Nevertheless, the policy emphasizes throughout that its priorities are not hard-and-fast rules but simply guidelines for focusing enforcement resources. It also emphasizes that every enforcement decision should ultimately turn on case-specific factors.
It seems fair to say that the policy does not describe achieving full and rigorous compliance with the immigration code as the agency’s goal, and Texas and Louisiana argue that the federal policy has resulted in practice in decreased federal enforcement and increased burdens on the state. The states object specifically to the policy’s failure to require detention of certain deportable immigrants who are subject to detention under federal statutory provisions because of a criminal conviction or removal order.
Even if the federal policy has reduced enforcement, however, the Supreme Court should reject the Texas and Louisiana’s challenge, because courts should not be in the business of invalidating policies like this one. The criteria the Supreme Court has developed in its political-question cases—absence of judicially manageable standards and textual assignment to a coordinate branch—help illuminate why.
To begin with judicially manageable standards, setting enforcement priorities, as the administration did in this policy, entails an essentially open-ended judgment of relative importance. Which legal violations should an agency focus on when it cannot pursue them all? Congress can enact statutes to answer this question, but it rarely does so. Instead, Congress normally passes laws on the assumption that executive officials will exercise discretion to pick and choose cases and set sensible priorities. Congress presumes, in other words, that executive officials will do the best they can with what they have, setting priorities if necessary to direct enforcement efforts towards the most pressing violations.
In principle, executive officials should be seeking to maximize compliance with federal law; the President, after all, is constitutionally obligated to ensure that the laws are faithfully executed. Yet the questions raised by this sort of priority-setting policy—questions about whether officials are focusing on the right priorities, or indeed whether they are doing their best at all—are generally matters of degree. Without objective benchmarks for assessing executive choices, judges’ own policy preferences may taint a reviewing court’s analysis, leading to inconsistent and unprincipled results that cloud political accountability without substituting any clear legal accountability.
As is often the case with political questions, the Constitution’s textual assignment of the relevant powers reinforces the same concerns. Law enforcement is a quintessentially executive function. The Constitution vests the “executive Power” in the President; it further obligates the President to “take care that the laws be faithfully executed”; and the overall constitutional architecture presumes that officials accountable to the President, and through him to the public, will be responsible for enforcing the laws enacted by Congress. Courts’ central function, by contrast, is to provide a neutral forum for resulting disputes between the government and regulated parties. Declaring enforcement priorities unlawful risks distorting this framework by making courts, rather than the executive branch, responsible for the choice of whom to target for enforcement in the first place.
To be clear, there are important outer bounds to these limits on judicial review of enforcement priorities. If an enforcement policy is so categorical as to effectively guarantee that unlawful conduct will be tolerated, then courts can invalidate the policy. Doing so does not mean requiring enforcement in any particular case; nor does it even require supplanting executive priorities. Invalidating such a policy simply restores the deterrent effect of the underlying prohibitions, making clear that, as the Supreme Court put it in a 2014 case, “[a]n agency confronting resource constraints may change its own conduct, but it cannot change the law.” In my view, the DACA and DAPA deferred action programs could be judicially overturned for this reason. As I discuss in a forthcoming essay, so could a number of Trump Administration policies that purported to suspend disfavored regulations.
Although the Fifth Circuit held that the policy likely violated statutes mandating detention of some deportable immigrants, it seems doubtful that those statutes properly displaced the executive branch’s discretion over whether to seek deportation in the first place. Nor is it clear that the government could fully enforce the relevant provisions with available resources even if it wanted to. In any event, as Judge Sutton observed in a parallel Sixth Circuit case, “If it is fair to worry from time to time about the risks when executive-branch agencies exercise legislative and judicial power, it is equally fair to worry when judges are called into disputes that turn principally on policy and resource debates between the First and Second Branches.”
In recent years, a vogue for nonenforcement at all levels of government has weakened the expectation that executive officials will take seriously the laws they are charged with enforcing. This trend is unfortunate: if laws are bad, they should be changed, not nullified by executive inaction. Nevertheless, at least in the federal context, there is only so much that courts can do. Federal courts lack the institutional capacity and public accountability required to manage a complex function like immigration enforcement. Accordingly, the best thing the Supreme Court can do in United States v. Texas is to keep accountability for border problems squarely on the political branches, where it belongs.
Zachary Price is a professor at UC Hastings Law in San Francisco.