United States v. Texas Could Resolve a Circuit Split on Whether Prosecutorial Discretion Applies to Generally Applicable Non-Enforcement Policies, by Levon Schlichter
The Administrative Procedure Act (APA) provides that judicial review applies to final agency action except to the extent that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). Courts have interpreted this provision to preclude judicial review of individual, ad hoc decisions by an agency to not enforce a statute.
In a widely cited case in 1985, the Supreme Court examined whether the Food and Drug Administration’s (FDA) decision not to take enforcement action was unreviewable under § 701(a) of the APA. Heckler v. Chaney, 470 U.S. 821 (1985). In Chaney, the respondents were prison inmates who alleged that certain drugs used for capital punishment violated the Food, Drug, and Cosmetic Act and they petitioned the FDA to take enforcement action to prevent these violations. Id. at 823. The FDA declined to take enforcement action because (1) its jurisdiction in this area was unclear and (2) even if it did have jurisdiction, the respondents did not demonstrate that there was a ‘serious danger to the public health or blatant scheme to defraud,’ which the FDA generally established before initiating enforcement action. Id. at 824-25. Chaney’s analysis began with the premise that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Id. at 831. The Court explained that there are several reasons for this interpretation of § 701(a) of the APA. First, an agency often has to balance a number of complicated factors within its unique area of expertise when deciding not to enforce, including whether its resources are best spent on a particular enforcement action. Id. Second, the Court noted that an agency’s decision not to enforce means that the agency is generally choosing not to exercise “coercive power over an individual’s liberty or property rights,” which cuts against the need for courts to review agency action to ensure justice prevails. Id. Conversely, when an agency does act, that action “provides a focus for judicial review.” Id. Lastly, the Court compared an agency’s decision not to enforce with a prosecutor’s decision not to indict and it pointed out that the latter non-enforcement decision has long been recognized as the “special province of the Executive Branch.” Id. Therefore, the Court held that the FDA’s non-enforcement decision was presumed to be unreviewable but this presumption could be rebutted in cases where the “substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. 833. In an accompanying footnote, the Court distinguished Chaney from a situation in which the agency adopts a general non-enforcement policy that is so extreme that it amounts to an “abdication of its statutory responsibilities.” Id. at 833 n. 4.
Fast forward to 2020 and the Supreme Court was squarely presented with a question of whether the Department of Homeland Security’s (DHS) generally applicable non-enforcement policy was unreviewable under Chaney and § 701(a) of the APA in DHS v. Regents of the University of CA, 140 S.Ct. 1891 (2020). DHS’s Deferred Action for Childhood Arrivals (DACA) program allowed DHS to defer removal proceedings for unauthorized non-citizens who met certain conditions, such as continuously living in good standing in the United States. When DHS concluded that the conditions were met to defer removal proceedings, the unauthorized non-citizen became eligible for work authorization and various Federal benefits. Id. at 1901. In Regents, the Court first considered whether DHS’s rescission was unreviewable because it was committed to the agency’s discretion. The government argued that a general non-enforcement policy is not reviewable, just as an individual non-enforcement decision is unreviewable. The Court side-stepped this question and, instead, held that DHS’s rescission was reviewable because DACA conferred eligibility for employment and Federal benefits and, therefore, it was not simply a non-enforcement policy. Id. at1906. The question still remained, however, whether Chaney is limited to only individual non-enforcement decisions made on an ad hoc basis or if it applies to generally applicable non-enforcement policies.
In July, 2022, the Fifth and the Sixth Circuits issued conflicting opinions about whether another generally applicable DHS policy was reviewable under Chaney. These two cases involved a series of DHS memoranda that set out enforcement priorities for when to initiate removal proceedings when a non-citizen is convicted of a crime. The first January 2021 memorandum set forth the criminal convictions that DHS would prioritize for initiating removal proceedings, such as aggravated felonies. Other types of crimes, such as convictions for drug trafficking were not prioritized, even though the Immigration and Nationality Act (INA) authorized DHS to initiate removal proceedings when a noncitizen is convicted of these crimes. In February 2021, DHS issued a second memorandum which largely repeated the policies in the first memorandum but added a requirement that immigration officials obtain their supervisor’s approval before initiating any enforcement action that was not identified as one of the highest priorities in the January 2021 memorandum. In September 2021, DHS issued a third and final memorandum which reiterated the highest-priority crimes but it did not presumptively subject these high-priority crimes to enforcement action. Instead, it required immigration officials to assess the totality of the facts and circumstances before arresting and detaining a non-citizen; and it prohibited immigration officials from taking enforcement action based solely on the fact of any conviction.
According to the Sixth Circuit, the DHS memoranda left a lot of discretion to immigration officials about whether to initiate removal proceedings in a particular case and did not prohibit immigration officials from taking enforcement action in any particular case. Arizona v. Biden, 40 F.4th 375 at 389 (6th Cir. July 5, 2022). Regarding the question of reviewability, the Court merely cited Chaney to support its conclusion that DHS’s memorandum was “likely unreviewable” but did not provide an analysis as to why Chaney applies to a generally applicable non-enforcement policy. The Sixth Circuit then held that the INA did not require DHS to initiate removal proceedings in all instances even though it provided that DHS “shall” remove non-citizens convicted of certain enumerated crimes. In reaching this conclusion, the Sixth Circuit relied heavily on the fact that in the immigration context, immigration officials have discretion over whom to arrest and remove and whether to abandon an enforcement action that has been initiated. Id. at 390-91. For these reasons, the Sixth Circuit held that the statute’s use of “shall” did not “remove all of its discretion in making removal and detention decisions” and that DHS retained its long-standing prosecutorial discretion in prioritizing when to enforce the statute. Id. at 389.
In contrast, the Fifth Circuit began its analysis by noting that it was unlikely Chaney applied to DHS’s memoranda. Texas v. United States, 40 F.4th 205, 213, 222 (5th Cir. 2022). Nevertheless, the court assumed Chaney applied and it held that this case involved a situation where the agency’s non-enforcement action amounted to an abdication of DHS’s statutory responsibilities because the INA provided guidelines for DHS to follow when making enforcement decisions, which are circumstances where a court could review an agency’s non-enforcement decision under Chaney. In the Fifth Circuit’s opinion, the DHS memoranda reflected DHS’s “calculated, agency-wide rule limiting [immigration] officials’ abilities to enforce statutory law.” Id. at 222.Thus, the Fifth Circuit interpreted the INA as requiring DHS to initiate removal proceedings under certain circumstances. The Fifth Circuit distinguished its case from the Sixth Circuit’s decision based on the fact that a prior Fifth Circuit case controlled in many respects and that the record before the Fifth Circuit was more comprehensive than the Sixth Circuit ’s record.
Interestingly, the Supreme Court granted certiorari on July 21, 2022, and directed the parties to brief and argue whether DHS’s memoranda are contrary to statute or otherwise violate the APA. United States v. Texas,2022 WL 2841804 (2022). In its brief, the U.S. government primarily argues that the DHS memoranda are not contrary to the INA, do not require notice and comment and are not arbitrary and capricious; however, the U.S. government also argues that DHS’s decision on whether to institute or maintain removal proceedings is ‘generally committed to an agency’s absolute discretion.’ Quoting Chaney, 470 U.S. at 832. It remains to be seen whether the Court will opine on whether Chaney applies to generally applicable non-enforcement policies.
In examining this question of whether Chaney should apply to generally applicable non-enforcement policies, there are some interesting questions to consider. In a world where agencies have limited resources, can an agency decide that it will not allocate its limited resources to enforce any violations of particular laws that it deems to be a lower priority? Is there a standard the Court could use to determine if the agency’s non-enforcement policy is driven by its management of scarce resources or if that is a pretext for rescinding a statute that the agency’s leadership opposes as a matter of policy? Where an agency asserts that its generally applicable non-enforcement policy is driven by resource allocation considerations, would the Court look at the agency’s entire portfolio of enforcement work and justify general non-enforcement of a particular law as a means to more robust enforcement of other higher-priority laws? Or would a generally applicable non-enforcement policy automatically lead the Court to conclude that the agency is abdicating its statutory responsibility? Does the Department of Justice’s generally applicable policy of non-enforcement of marijuana under the Controlled Substances Act serve as a proper analogy when examining how far to extend Chaney in cases involving non-criminal statutes? If Chaney does not apply to a generally applicable non-enforcement policy, what is the reason for limiting prosecutorial discretion to only individual, ad hoc decisions to not enforce? Do those reasons extend to a certain subset of generally applicable non-enforcement policies, such as a policy that merely narrows the instances where an agency will enforce a statute rather than a policy that essentially rescinds the statute by way of non-enforcement? Does the analysis change where an agency’s generally applicable non-enforcement policy is based on an interpretation of the applicable statute? Or would a court refuse to look at the underlying reason for the agency’s non-enforcement policy? Does the answer to the question of whether Chaney extends to generally applicable non-enforcement policies change based on whether the statute is a criminal statute, a civil statute, or an immigration statute? Does the answer change if the law that the agency is not enforcing derives from a regulation, as opposed to a statute?
These are all questions this author’s research has not clearly answered. Perhaps the Supreme Court will shed some light on some of these questions in its upcoming case United States v. Texas; however, it is likely that variations of these questions regarding how far Chaney extends to generally applicable non-enforcement policies will continue to arise.
Levon Schlichter is an attorney in the federal government. This article was written by the author in his private capacity. No official support or endorsement by the U.S. Government is intended or should be inferred. 5 C.F.R. § 2635.807(b).