Bob Schwartz

The following will not necessarily make you smarter than the hundreds—thousands?—of talking heads you will hear opining and pontificating about the President’s speech tonight on immigration. But it just might.

For those who haven’t followed this political drama, the President has long awaited Congressional action on immigration reform, and in the absence of that, has decided to take executive action. Reports are that this will include deferring legal proceedings against a large number of undocumented immigrants. Charges are already flying from political opponents, claiming that the President is exceeding his authority, with impeachment even being discussed.

It appears that the basis for this executive action may be prosecutorial discretion. As you may know (and as recent events in Ferguson, Missouri have highlighted), prosecutors have broad, virtually unlimited and unreviewable discretion to decide who to prosecute and not prosecute. There are principles and theories about how this discretion might be less than absolute, but as a matter of practice, it is quite broad.

The Congressional Research Service (CRS) is the very valuable but little-known non-partisan government service that answers questions that Congress has about any issue that Congress is interested in. You name the topic or issue, CRS has probably studied it.

Last December, CRS answered a question that is at the heart of the President’s approach to the immigration crisis: What, if any, are the limits on prosecutorial discretion in immigration?

The report, Prosecutorial Discretion in Immigration Enforcement: Legal Issues is a must-read. It is true that legal opinions on many issues differ (see the Supreme Court), but CRS is supposedly the starting point for any questions that Congress has. Congress members may have disagreements with the reports, but few question the impartiality or skill of CRS researchers.

CRS concludes:

Regardless of whether it is characterized as “prosecutorial discretion” or “enforcement discretion,” immigration officers are generally seen as having wide latitude in determining when, how, and even whether to pursue apparent violations of the INA [Immigration and Nationality Act]. This latitude is similar to that possessed by prosecutors in the criminal law enforcement context and enforcement officials in other federal agencies. Whether and how to constrain this discretion has been a recurring issue for some Members of Congress, particularly in light of the June 2011 DHS [Department of Homeland Security] memorandum on prosecutorial discretion and the more recent DACA [Deferred Action for Childhood Arrivals] initiative. While some Members have expressed support for the DACA initiative, or called for expanded use of prosecutorial discretion by immigration authorities in other contexts, others have sought to prohibit DHS from granting deferred action or extended voluntary departure to removable aliens except in narrow circumstances, or to “nullify” particular policies regarding prosecutorial discretion that have been articulated by the Obama Administration….

In addition, the degree of intrusion into executive enforcement decisions may also impact a court’s review of any congressional response. For example, legal precedent suggests that Congress probably cannot directly limit the President’s exercise of discretion by requiring that the executive branch initiate enforcement actions against particular individuals. On the other hand, Congress would appear to have considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers, including by “indicat[ing] with precision the measures available to enforce the” INA, or by prohibiting DHS from considering certain factors in setting enforcement priorities.

However, the existing judicial presumption that “an agency’s decision not to take enforcement action [is] immune from judicial review,” and the deference potentially accorded to an agency’s interpretation of its governing statute, suggests that such statutory guidelines would likely need to be clear, express, and specific. The use of “shall” in a provision of the INA may not, in itself, suffice for a statute to be construed as having provided enforceable guidelines for immigration officials to follow in exercising prosecutorial discretion. Absent a substantive legislative response, Congress may still be able to influence the implementation of DACA or other discretion-based policies by the immigration authorities, including by engaging in stringent oversight over the DHS program or by exercising its “power of the purse” to prohibit DHS and its components from implementing particular policies related to the exercise of prosecutorial discretion that Congress does not support.

Translation: Congress cannot force the executive branch to enforce particular immigration provisions, which means that an executive policy to defer enforcement is not subject to Congressional control. (This is as good a point as any to mention that President Obama has already overseen a record number of immigrant deportations and he is not “soft” on undocumented immigration). However, in the view of CRS, Congress has “considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers.” That is, Congress could exercise its will by simply passing laws on this significant issue. Or on any significant issue that it claims to be vexed about. But it won’t. So can you blame the elected leader of the American people for being frustrated, and choosing to do what he can to step in where the brave and bold members of Congress are—how to say this politely—too fainthearted to go?