By Juliet P. Stumpf | 64 Am. U. L. Rev. 1259


The devolution of immigration authority to line officers, touted as a strength of the Secure Communities program, planted the seeds of the program’s downfall.  Rising from the ashes of Secure Communities, the Priority Enforcement Program (PEP) set priorities for removal and also unveiled a potential antidote to the devolution of agency discretion.  This Article details the rise of Secure Communities and describes the devolution of discretion that ultimately undermined the program.  It then spotlights a little-noticed attribute of the PEP—one that addresses head-on Secure Communities’ devolution of enforcement discretion to the lowest level.  PEP attempts to recapture federal discretion to make macro-level policy decisions about immigration enforcement by siphoning discretion up the chain to higher-level federal officials.  This hydraulic experiment in recapturing agency discretion will ultimately determine whether immigration enforcement priorities are doomed to devolution or poised to find a perch on higher ground.

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