Amnesty or not to Amnesty. That is the question.

A key part of the Fifth Circuit’s decision to keep the freeze on President Obama’s amnesty programs was the 25-page dissenting opinion written by the panel’s lone Obama appointee. Not only does it point to how the bloc-voting liberal justices of the Supreme Court will ultimately treat the case, it almost wholly focuses on the threshold issue of “prosecutorial discretion”: an executive-branch power that, if expanded to include mass grants of amnesty, would remove the last vestige of authority that Congress and the courts have in preventing immigration anarchy at our nation’s southern border. 

 

The “essential point of disagreement” that Judge Stephen Higginson had with Judge Hanen’s lower-court opinion has to do with the characterization of the president’s amnesty programs. How DAPA and DACA are categorized is crucial for both sides. Obama’s attorneys contend that the programs are mere exercises of “prosecutorial discretion” on the part of the president. 

 

The core case that “forecloses plaintiffs’ arguments” against the administration’s use of DAPA and DACA, wrote Judge Higginson, is Heckler v. Chaney, where the Supreme Court held that “an agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion.” Finding that these programs were something bigger than mere decisions not to prosecute, Judge Hanen determined that the Heckler ruling couldn’t apply to the president’s amnesty. Higginson quotes Hanen’s characterization of DACA and DAPA, emphasizing that he called them “announced programs of non-enforcement of the law that contradicts Congress’s statutory goals” and an “abdication of [the government’s] statutory responsibilities.” 

 

The descriptor “announced” is essential here, and Higginson is right to focus on Hanen’s characterization so intently. “Prosecutorial discretion” refers to the priorities prosecutors sometimes must adopt (almost always in the context of criminal prosecutions) given the operational limits they face. The Department of Homeland Security has appropriated this concept, asserting that by being able to prosecute illegal aliens according to its own discretion, rather than the guidelines set forth in our immigration laws, it can save its “limited resources” and better “prioritize” cases that deserve the most attention — e.g., convicted felons, illegal aliens who are threats to national security, and so on. 

 

But such priorities are not usually “announced” by prosecutors. As liberal law professor (and immigration attorney) Peter Margulies writes, the decision to exercise discretion in dealing with wrongdoers necessarily must be done “in the dark,” not out in the open (as in a nationwide memo). To announce such an intention is to create “moral hazard,” the concept most commonly used to describe the unintended consequences of insurance. As Margulies says, “moral hazard arises because individuals who know they will be held harmless for wrongdoing tend to do more of it” (emphasis added). Letting wrongdoers, such as illegal aliens, apply in advance for a “fixed period of forbearance” (deferred action) would lead to more of the bad behavior in question, such as overstaying a visa or crossing the border without appropriate documents. 

 

Take the case of burglary, says Margulies. If a person charged with burglary is young and his theft was small, a judge may favor a plea bargain instead of sentencing him to prison. But “it would be difficult to imagine,” writes Margulies, “prosecutors would solicit applications from known burglars for a ‘burglars’ holiday’ that would guarantee a specific period of immunity.” 

 

The Immigration Nationality Act (INA) is a deterring statute. Since its original enactment in 1952, it has been continually amended to better deter illegal immigration. By announcing an “illegal aliens’ holiday,” the president created the moral hazard of giving a reprieve to illegal aliens, which has the result of suspending the deterring power of the INA. In a word, then, DAPA and DACA are an “abdication,” and Judge Hanen is absolutely right. 

 

Any discretion a president may have had in prosecuting illegal aliens and deferring deportations was taken away by the INA’s IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act) amendments of 1996. Even open-borders pushers like the ACLU agree that the INA as written leads to “mass deportations”: That is the mandate given to DHS. Even Noam Chomsky agrees with this characterization. President Clinton, he says, “militarized” the border in the mid-Nineties in anticipation of the implementation of NAFTA. According to Chomsky, because independent Mexican farmers had no way to compete with subsidized U.S. agribusiness, the “likely consequence would be flight to the United States, joined by those fleeing the countries of Central America.” To say, as Higginson does, that the INA could possibly forgo its deterrence factor and authorize DAPA and DACA takes some serious mental gymnastics. 

 

The Bogus Legal Case for Obama’s Amnesty Any discretion that Congress allows for must have a “limiting principle” that narrowly confines the transfer of authority in question, lest it simply become a runaway power grab. There is no such limitation in DAPA and DACA. Oddly, Judge Higginson inadvertently supports this argument when he claims throughout his dissent that the “Family Fairness” deferred-action program of 1990 provides legal precedent for the president’s amnesty. That program makes  DAPA and DACA “neither new nor uncommon,” he says. Higginson, however, fails to discuss the limited applicability of that program. 

 

 Family Fairness grew out of the legislative amnesty of 1986, when a small number of the beneficiaries’ dependents (mostly children) were left out because of an oversight. Importantly, those children were able to be sponsored after the beneficiaries became lawful permanent residents. Congress sought to correct this mistake by making provision for this class in the Immigration Act of 1990; in the interim (which lasted several months), members of this class, despite being illegal aliens, had their deportation proceedings stayed. As law professor Josh Blackman says, the program served as a “temporary bridge from one status to another,” with Congress granting the children legal status almost immediately after it was put in place. 

 

When another Obama-appointed judge, Beryl Howell of the D.C. District Court, raised Family Fairness as “precedent” in her dismissal of Arizona sheriff Joe Arpaio’s DACA challenge, Margulies said she “failed to acknowledge the distinction between discretion that acted as a bridge to legal status and discretion unmoored to status” (emphasis added). Deferring prosecution for a narrowly defined group of people whose change in status is all but inevitable is the kind of temporary and limited discretion that Congress arguably can give to the president. But deferring prosecution for large groups of people is what makes Obama’s amnesty completely unhinged and a reviewable abdication of duty. 

 

— Ian Smith is an attorney in Washington, D.C., and works for the Immigration Reform Law Institute.