Excerpted From: Peter Margulies, Immigration Law's Boundary Problem: Determining the Scope of Executive Discretion, 74 Hastings Law Journal 679 (February, 2023) (507 Footnotes) (Full Document)

PeterSMarguliesIn the fraught realm of immigration, presidential discretion takes many forms. As in the Deferred Action for Childhood Arrivals (DACA) program established by President Obama, the exercise of discretion can be protective, providing noncitizens with relief such as a reprieve from removal and eligibility for a work permit. Presidential discretion can also be regulatory, barring immigrants or revoking relief: consider President Trump's suspension of entry from certain majority-Muslim countries, his failed attempt to rescind DACA, or his invocation of public health authorities to suspend entry at the southern border, which President Biden has continued.

Courts lack consistency in delineating the contours of executive discretion. The Supreme Court limited the Trump Administration's discretion to end DACA, which provided a reprieve from removal and eligibility for a work permit to childhood arrivals. As a basis for its decision, the Court found that the Trump Administration had failed to comply with the “reasoned decisionmaking” standard of the Administrative Procedure Act (APA However, since the Court's DACA rescission decision, a federal district court has held that initiating DACA was beyond the discretion of the Obama Administration. When courts hold that both starting and ending a program are beyond executive discretion, officials are left searching for discretion's parameters.

The geographic reach of the discretion at issue is a problematic basis for fixing such parameters. Distributed along an internal-external divide, courts have often found that Congress delegated more discretion to the executive branch in matters concerning noncitizens outside the United States and less in matters concerning noncitizens who are already here. The Supreme Court upheld President Trump's suspension of entries from certain majority-Muslim countries--sometimes known as the “travel ban” or “Muslim ban”--asserting that Congress gave the President expansive power to bar foreign nationals from entering the United States. President Trump's attempted DACA rescission elicited more probing judicial scrutiny, in part because the rescission affected hundreds of thousands of noncitizens who had been in the United States for years, forging personal, institutional, and economic ties that bound them to this country. But this longtime distinction clouds rather than sharpens the analysis.

A divide between external and internal arenas obscures reliance interests in the external realm and erodes transparency in the domestic domain. President Trump's travel ban delayed and sometimes extinguished U.S. citizens' and lawful permanent residents' (LPRs) plans for family reunification--plans that the Immigration and Nationality Act's (INA) framework prioritizes. At the same time, the thin national security rationale for the travel ban and the backdrop of deference to such meager justifications may well have contributed to the cursory explanation for the DACA rescission. That absence of reasoned decisionmaking in the domestic realm stems from judicial deference in the external context.

Even as courts have muddled the issue of discretion, scholars have offered unsatisfying responses. Most immigration scholars deplore the arbitrariness and artificiality of the internal-external divide. However, approaches to discretion have often been asymmetrical, with immigration scholars arguing for the lawfulness of protective discretion while opposing regulatory discretion, and conservative scholars taking the opposite view. This exchange can yield useful insights, but ultimately lacks nuance.

Two important immigration scholars, Adam Cox and Cristina Rodríguez, have taken a different path, outlining a model of plenary discretion. This model boldly places both protective and regulatory discretion in the realm of political choice, largely immune to judicial second-guessing. Although Cox and Rodríguez's sympathies are plainly with the protective camp, their approach is consistent, arguing both that the Obama Administration had discretion to promulgate DACA and Deferred Action for Parents of Americans (DAPA), and that courts should have allowed the Trump Administration to end DACA. But the plenary discretion model has serious flaws. Because it views the President as an independent actor, it minimizes accountability to Congress. In addition, because different presidential administrations will wield discretion in different ways, the plenary discretion doctrine impairs continuity. In discounting the importance of statutory structure, the plenary discretion model disserves transparency, since a statute is the single most accessible source of guidance for the public.

Finally, as we shall see, the plenary model is flawed as a descriptive model of past practice on immigration. Most past examples of presidential policy have not stemmed from unilateral presidential action. Instead, as with the Family Fairness program that the Administration of President George H.W. Bush initiated to help the children and spouses of noncitizens legalized under the 1986 Immigration Reform and Control Act (IRCA), these measures have sprung from close collaboration between Congress and the executive branch. Discretion has been interstitial in such cases, not plenary.

To best frame both protective and regulatory discretion as normative matters, this Article advances a stewardship model. This model stresses accountability to Congress, continuity, and transparency. Its principal criterion is what this Article calls “framework fit”--the match between the INA's overall structure and the exercise of the discretion at issue. Framework fit centers on the major questions doctrine. Under that doctrine, courts infer a limit to the discretion's scope if legislation meets two conditions: (1) enactment of a comprehensive legislative framework, and (2) silence about the use of executive discretion on a related matter of great social, political, or economic importance. In addition, framework fit considers structural cues in a statute, such as the specificity of grants of authority and exceptions to a statutory mandate. The stewardship model would apply framework fit across the board, ending application of the internal-external distinction. Deference flowing from that distinction has undermined accountability to Congress, continuity, and transparency, allowing animus and political expedience to substitute for reasoned decisionmaking. Tempering that deference would promote the values that discretion should serve.

Under framework fit, DACA would be a lawful exercise of discretion, although the Obama Administration's larger DAPA program was not. In a puzzling agency development, the Biden Administration's explanation for its final rule on DACA failed to fully integrate framework fit into its analysis. It thus veered dangerously close to the expansive plenary discretion approach. DACA's survival hinges on a more tailored account of its legality that this Article teases out of the Biden Administration's explanation.

Reliance interests are another cornerstone of the stewardship model. Taking a broad view of reliance interests, the stewardship model of discretion considers the collateral impact of discretion on noncitizens, including the DACA recipients who would have had commitments to education and services disrupted by the Trump Administration's attempt to rescind the DACA program. The stewardship model would also consider the reliance interests of U.S. citizens and LPRs in the orderly administration and processing of visa applications for close relatives abroad, which President Trump disrupted with his travel ban. Broader still, the stewardship model would honor the reliance interests of asylum seekers who reach the U.S. border or U.S. ports of entry. Asylum seekers cannot reasonably assume that all their asylum claims will prevail. However, given Congress's incorporation into the INA of international law's non-refoulement principle--prohibiting a state from returning asylum seekers to a country where those persons face arrest, torture, or death--asylum seekers can assume that the United States will fully and fairly adjudicate their claims. Measures such as Title 42 that undercut this reliance interest exceed the bounds of discretion under the stewardship model.

The stewardship model then considers the foreign impacts of discretion. A case in point is the “Remain in Mexico” policy (officially known as the Migrant Protection Protocols (MPP)), which resulted in sending around 70,000 asylum seekers back to Mexico, even though virtually all were nationals of countries other than Mexico or the United States. Seeking to end the policy, President Biden's Secretary of Homeland Security, Alejandro Mayorkas, cited the unquestioned need for Mexico's consent to the presence of tens of thousands of noncitizens within its territory and the resulting imperative for complex negotiations with Mexico about the program's existence, scope, and operation. An administration that regards such negotiations as entailing difficult tradeoffs that the government would wish to avoid should have discretion to end the program without judicial interference.

This Article proceeds in five Parts. Part I discusses both individual and programmatic discretion: individual discretion refers to decisions to commence removal proceedings or to practice forbearance in particular cases, while programmatic discretion--the focus of this Article--deals with measures with a larger footprint. Part I further divides programmatic discretion into protective and regulatory components. Part II lays out the stewardship approach, discussing core values of accountability to Congress, continuity, and transparency, as well as the model's criteria of framework fit, reliance interests and other domestic impacts, and foreign consequences. This Part also discusses the plenary discretion model as an alternative and highlights the strengths and weaknesses of that approach. Part III provides an account of U.S. immigration law history within the stewardship frame, moving from the open door era to the first century of federal statutory regulation and contemporary statutes such as the Refugee Act of 1980. Part IV discusses recent developments, including the Biden Administration's guidelines on enforcement priorities, the fate of DAPA, and the attempted rescission of and new final rule regarding DACA. It then discusses the Biden Administration's efforts to end the Remain in Mexico program. Finally, Part V discusses recent episodes in regulatory discretion, including President Trump's travel ban and the Title 42 program.

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The scope of executive discretion over immigration law has been a subject of debate for over a century. Unfortunately, courts have too often compounded confusion. This Article aims to provide ground rules for fixing discretion's scope.

Clarifying the scope of discretion requires a distinction between individual discretion in particular cases and programmatic discretion that uses broad categories. Within programmatic discretion, some policies are protective, aiding noncitizens. Other policies are regulatory, seeking to limit entry and hasten removals. Most presidents have toggled between the protective and regulatory modes. President Donald Trump broke this mold, focusing exclusively on regulatory measures such as the travel ban, MPP, and Title 42, along with seeking to rescind DACA.

Current approaches to discretion are ill-equipped to address excesses of a future President who follows President Trump's lead. Moreover, our current toolkit would not adapt well to a President who sought to wield unchecked protective power. Asymmetry characterizes most current approaches to executive discretion. In federal appellate courts, the Fifth Circuit engages in probing scrutiny of any protective measure, as it did with both the Obama Administration's unduly expansive DAPA program and the Biden Administration's termination of MPP. In contrast, the Ninth Circuit has robustly reviewed President Trump's regulatory measures, including MPP, but has signaled that it would give the President a blank check in the protective realm. The ethos of immigration scholars has gravitated toward this approach. The Supreme Court has long practiced a different kind of asymmetry, demarcating the internal-external divide.

To properly assess executive discretion, courts should start from three key values that a stewardship model endorses: accountability to Congress, continuity, and transparency. Asymmetrical models fail to follow these values. Recently, professors Cox and Rodríguez have advanced a plenary discretion model, which is consistent in deferring to the executive branch on both protective and regulatory measures. However, this consistency comes at a price. The plenary discretion model unduly elevates the President to a co-principal in immigration law, thereby unduly discounting accountability to Congress, continuity, and transparency--although debits just narrowly exceed benefits on that final metric.

The stewardship model relies on three criteria: framework fit, protection of reliance interests, and mitigating foreign impacts. This model cabins both regulatory and protective discretion, although the model provides a more relaxed test for protective measures due to their roots in traditional individual discretion and in past practice regarding aid to intending Americans. In addition, the stewardship model applies these criteria across the board, rejecting the internal-external distinction.

Under the stewardship model, the Mayorkas enforcement guidelines, the termination of MPP, and the continuation of DACA would survive scrutiny, although the much larger DAPA program would rightly fall by the wayside. This model would also have resulted in the invalidation of President Trump's travel ban. Additionally, it would have found that the Title 42 program did not fit the INA's detailed framework of humanitarian protections.

Use of the stewardship model will not end the perennial debate about executive discretion. But it will structure that debate in a way that upholds continuity, transparency, and accountability to Congress. Those are useful achievements in any era.

Professor of Law, Roger Williams University School of Law; B.A., Colgate University; J.D., Columbia Law School.