The Damoclean Sword of Enforcement Discretion

President Obama recently announced a significant policy of non-enforcement of immigration law aimed at protecting the position of illegal immigrants who are on a ‘pathway’ to citizenship. There is an excellent symposium at Jack Balkin’s blog, accessible here. Simply put, President Obama’s argument is that the legislative branch has not allocated sufficient resources to apply the immigration laws with full force, requiring him to set enforcement priorities.

I particularly enjoyed David Alan Sklansky’s post. As I have emphasized before, rule of law values may be furthered when enforcement discretion is set out in a transparent policy  rather than exercised on a case-by-case basis. Sklansky takes the same view:

What has drawn criticism, of course, is the announcement of a policy not to deport most people in that group, at least not for the time being, coupled with a decision to give them work permits.  I don’t feel particularly qualified to opine about the legality of the work permits, except to note—as has the Administration—that there is a longstanding practice of giving work permits to immigrants granted “deferred action,” a practice to which Congress and the courts seem, at a minimum, to have acquiesced.  But to someone who thinks more about prosecutors than about immigration agents, it’s weird to see to see the President criticized as “lawless” for announcing a formal policy rather than continuing to forego deportation on a entirely ad hoc, decentralized, case-by-case basis, as everyone seems to agree he could have done.  It’s in large part the ad hoc, decentralized nature of prosecutorial discretion that has seemed to many people, for quite a long time, to allow prosecutorial power to be exercised so arbitrarily.

Gillian Metzger’s post is also notable. She defends the legality of exercising enforcement discretion pursuant to a policy rather than on a case-by-case basis, criticizing in the process the President’s concern to ensure some room for case-by-case assessments:

Most importantly, an insistence on preserving case-by-case assessment ignores the constitutional values served by categorical enforcement policies.  Meaningful supervision over case-by-case removal decisions is hard.  Precluding prospective and categorical articulation of immigration enforcement priorities is thus tantamount to insisting that nonenforcement decisions must be made by lower-level officials.  Such a requirement stands fundamentally at odds with our constitutional structure, which I have argued embodies a duty to supervise exercises of delegated power.  On this view, by openly stating a generally applicable policy and instituting an administrative scheme and guidance to implement that policy, President Obama and Secretary Johnson were fulfilling their constitutional duty.  This positive constitutional case for categorical enforcement oversight deserves greater weight in assessing the initiative’s constitutionality.

Whatever the merits of President Obama’s new approach to enforcement discretion in immigration matters, a Sword of Damocles continues to hang over illegal immigrants who benefit from the policy. A future Congress might devote more resources to deportation. A new President might take a different view of enforcement priorities.

As the Supreme Court of Canada recently reminded us, even long periods of refusal to enforce statutory provisions do not give beneficiaries any vested rights. In Immeubles Jacques Robitaille inc. v. Québec (City), 2014 SCC 34, the municipality had desisted for many years from applying a zoning by-law — principally, one suspects, because the party involved was paying handsome municipal taxes (see para. 7). But it changed its mind. The Court gave short shrift to the argument that the municipality was estopped from enforcing the by-law:

[26]                          Insofar as the appellant in the case at bar is arguing that the substance of the promise was an authorization to violate the zoning by-law (a “promise” that flowed from the respondent’s actions or from a tolerance on its part), the only possible conclusion is that such a promise cannot lead to the application of public law estoppel.  Since a municipality cannot deviate from its zoning by-laws or authorize such a deviation…it cannot be forced to do so by means of the doctrine of estoppel

[29]                          In short, the doctrine of estoppel cannot be relied on as a defence in the case of a regulatory offence.  It is well established that this doctrine cannot be raised in a public law context in the face of a clear legislative provision.  In the instant case, the by-law is clear, and it creates a strict liability offence on grounds related to the public interest and does not authorize the municipality to consent to a non-conforming use.

The position of America’s immigrants is better today than it was several weeks ago. But we should not mistake executive forbearance for substantive rights.

This content has been updated on December 3, 2014 at 08:55.