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Home Archive Volume 64 Volume 64, Issue 5 The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law
The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law

By Peter Margulies | 64 Am. U. L. Rev. 1183

 

If a policy’s wisdom rebutted all concerns about its legality, American law would be a vastly different domain.  However, the Framers’ design places process over policy.  In crafting a government in which each branch can “resist encroachments of the others,” the Framers limited the opportunities for unilateral executive action.  When unilateral actions are myopic, structural design and sound policy happily coincide.  Conversely, the Framers’ architecture of power can elicit frustration when executive action appears wise and benevolent, while Congress’s stubborn inaction suggests it does not understand the full nature of the problem.  While these occasions test the Framers’ design, they do not warrant discarding the Framers’ structural choices.  The tension between President Obama’s Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA) program and the Immigration and Nationality Act (INA) is a case in point.

This Article is in five Parts.  Part I discusses the text and context of the INA, centering on its three-pronged approach to deterrence.  Part II discusses the history of executive discretion in immigration and Congress’s effort in the last twenty years to limit discretion in the award of immigration benefits.  Part III argues that DAPA is a legislative rule requiring notice-and-comment procedures under the APA.  This Part also argues that DAPA is reviewable as a “statement of general enforcement policy,” and that judicial review will further the INA’s aims without disrupting its implementation.  Part IV argues that DAPA should not receive deference under the Chevron doctrine because the INA unambiguously precludes a discretionary award of benefits of DAPA’s size and scope.  Part V concludes that DAPA also fails the separation of powers test outlined by Justice Jackson in Youngstown.

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