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The government can’t enforce every law. Who gets to decide which ones it does?

David Leopold wasn't sure if his client, Max Villatoro, had been deported back to Honduras late on the night of March 19 or early in the morning of March 20. Villatoro, an Iowa pastor, had called Leopold late Thursday night in a panic, saying he was about to be deported. Leopold spent Friday morning scrambling for confirmation from Immigration and Customs Enforcement (ICE). On Friday afternoon, he received the following email from ICE: "Good afternoon. This is to inform you that your client Mr. Villatoro has been removed to Honduras. He has landed. Thank you."


Leopold, a former head of the American Immigration Lawyers Association, was stunned. Villatoro was a longtime US resident. He has four US citizen children and a wife who's been protected from deportation under President Obama's Deferred Action for Childhood Arrivals program. He was a Mennonite preacher and community leader. President Obama's guiding directive on immigration enforcement is that he wants to deport "felons, not families." Villatoro had seemed safe.

But in 1998, Villatoro was convicted of driving under the influence. According to the November 2014 memo laying out who is supposed to be a priority for deportation, unauthorized immigrants with DUI convictions are in the "Priority 2" category.

While ICE hasn't commented on the record about the specific reasons for Villatoro's deportation, it's defended similar enforcement actions by pointing to the definition of Priority 2. But Leopold points to another clause in the memo, which says that a Priority 2 immigrant should be deported "unless [...] there are factors indicating the alien is not a threat to national security, border security, or public safety."

Who gets to make the judgment calls?

"Here's a guy who's a Mennonite preacher," Leopold says. "He doesn't drink. He preaches against drinking." Could a man like that really be a continued threat to public safety in 2015?

It depends on who's making that decision: who gets to make the judgment calls about when to deport someone and when to let him stay? Not only is that the key question in immigration policy right now, it's a fundamental conflict about how the executive branch should operate. In the context of a paralyzed Congress and a vast network of federal laws, the politics of discretion are going to be a key battleground in upcoming fights over how government ought to work.

For the past several years, the administration and immigration advocates have both been arguing for "prosecutorial discretion" in deportations: the idea is that the government should be prioritizing threats to public safety and putting less, or no, effort into deporting otherwise law-abiding unauthorized immigrants. But there's an argument over what discretion actually means. Some want the government to clearly define who is a felon and who is a family, and some want a lot of leeway for compelling circumstances to outweigh general guidelines.

But the definition of "discretion" isn't a problem unique to immigration. Immigration happens to be where the debate is happening out in the open. But it's not the only place where top administration officials might have a different notion of who deserves "discretion" than the people charged with going after violations of the law.

max villatoro

Max Villatoro and family. (Mennonite Central Committee)

Why discretion matters

"Prosecutorial discretion" has become a politically loaded term under the Obama administration, thanks to immigration (and, to a lesser extent, federal policy toward marijuana prosecutions). But it's an essential legal principle — and if you're not aware of it, many legal experts argue, it's because you're quietly benefiting from it.

"The reason you have to have prosecutorial discretion is that we now have an awful lot of federal laws for practically everything," says John Malcolm of the Heritage Foundation, who's a former Assistant US Attorney himself. "And when everything all of a sudden becomes a crime, then you have a broad field from which you can pick and choose. You have mail fraud. You have wire fraud. You have false statements, covering anything within the jurisdiction of the US. So if you go into any institution that receives federal funds or is federally insured and you make a false statement, even if it's a local facility, now you've committed a federal crime."

The choice is between simply making decisions based on convenience and making decisions based on deliberate priorities

As more things have become federal crimes, more federal agencies have gotten law enforcement units. But even so, there's no way the government can (or, really, ought to) prosecute every single violation of the law. So the choice isn't between perfect and imperfect enforcement. It's between simply making decisions based on convenience and making decisions based on deliberate priorities.

"If you're an agent and you're going to get credit for successful prosecution," says Malcolm, "you might go to the case that's going to take you five or six weeks, even though you ought to go for the one that will take you nine months."

So prosecutorial discretion is essentially triage: a way to decide when to set aside the six-week case, and when to clear the schedule for the nine-month one.

"Every administration has its priorities," says Malcolm; former Attorney General Janet Reno used a federal law against "deadbeat dads" to bring federal prosecutions for child support, but while the laws remained on the books, future administrations didn't bother to use them. That's discretion in action.

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An immigrant in Adelanto Detention Facility in California. (John Moore/Getty)

Does discretion come from the top down or the bottom up?

But if you scratch the surface of the definition of "prosecutorial discretion," you find that it actually encompasses two different principles — which aren't always in harmony.

The first is, as law professor Shoba Sivaprasad Wadhia puts it, an economic argument: the government has limited resources, and discretion is the way it makes decisions about how to spend them. This is the argument the Obama administration has always made in defense of its immigration policy. As one DHS official put it to Vox: "The history of prosecutorial discretion is that it comes from the fact that every government agency has limited resources, and therefore has to figure out how it's going to use those resources. And there are going to be priorities that are going to be set, and those should be the top priorities for the agency."

In this view, discretion is primarily a matter of top-down decision-making — or, in the words of the DHS official, "providing clear guidance to the field that they could follow, with regard to priorities"

In this view, discretion is primarily a matter of top-down decision-making — or, in the words of the DHS official, "providing clear guidance to the field that they could follow, with regard to priorities."

But there's another case for prosecutorial discretion: that in particular instances, someone who is technically in violation of the law shouldn't be prosecuted for it. By this principle, the heart of discretion is flexibility in individual cases: discretion from the bottom up.

In the top-down approach to discretion, it's the job of senior federal government officials to direct their subordinates about how to prioritize government resources. In the "bottom-up" approach to discretion, it's the job of individual government agents to consider individual cases and figure out if the circumstances merit the effort needed to enforce the law.

This is also the reason why Malcolm, and other conservative critics, believes the Obama administration went too far by proposing to allow millions of unauthorized immigrants to apply for deferred action against deportation. In Malcolm's view, the administration took broad categories of immigrants and categorically prohibited them from getting deported. If individual agents got to decide which applications for deferred action to accept and which to reject, the conservative critics might be okay with it — but they don't see evidence that agents are being allowed to use their discretion from the bottom up.

immigrants waiting for release

Immigrants wait to be released from detention in Adelanto. (John Moore/Getty)

The Obama administration: trying to tighten the reins

A set of memos during President Obama's first term laid out certain factors that should make someone a "high priority" for deportation — for example, being convicted of a crime. It also laid out factors that should make someone a "low priority" for deportation — for example, having US citizen children or being the primary caregiver of someone who was old or sick.

DHS headquarters would make the call that it was worth overruling the field agents to stop the bad press

The expectation was that ICE agents in the field would weigh the evidence to decide whether the factors making someone a "low priority" were enough to overwhelm the case for deportation. In lawyer-speak, this is called "weighing equities" — it's a longstanding principle of law in general and immigration law in particular. It was also a relatively bottom-up approach to discretion: suggesting which factors ICE agents should be weighing but not how much weight they should give them — especially if they were in conflict.

But several ICE field offices were, covertly or overtly, hostile to the notion that some unauthorized immigrants should simply be released after getting apprehended. As a result, what often happened was that ICE would put someone into deportation proceedings who had a compelling case to stay in the US. That person (or his family) would get in contact with local or national advocacy groups. The advocates would then launch a public campaign to pressure the government to stop the deportation — usually targeting ICE and DHS headquarters in DC. Those campaigns often worked, and DHS headquarters would make the call that it was worth overruling the field agents to stop the bad press.

In November 2014, the Obama administration (through DHS Secretary Jeh Johnson) released a memo that replaces the earlier policy about who should, and shouldn't, count as a priority for deportation. A DHS official told Vox, "The secretary was very concerned that the average officer in the field would have no clue what his directions were with all of these different memos," both the ones issued during Obama's first term and ones from previous administrations. The result: the memo announcing expansions of deferred action, with guidelines for when someone should be protected; and the new "clear guidance" enforcement memo, which lays out much clearer, and more restrictive, guidelines for when someone should be deported.

"But the other part of that" enforcement memo, the DHS official continued, "was to provide guidance on, within the framework of those priorities, how do you exercise discretion on a case-by-case basis?" That's where the language like the "unless" clause David Leopold highlighted comes in, indicating that ICE agents are still supposed to weigh competing factors against each other.

"According to the secretary's memo, you have to take the 'unless' clause into account in every circumstance," said the official. "Discretion will vary depending on the severity of the offense, but in each case it should be taken into account."

In other words, the administration says top-down guidance should be met with humanitarian, bottom-up discretion, to except people who might fit some of the "guidelines" for deportation they set out. But in Leopold's opinion, and the opinion of other immigration lawyers, that's not what ICE is doing. His experience with Villatoro has convinced him that ICE is using the new memo as a "checklist" — if someone meets one of the pro-deportation criteria laid out in the memo, he's gone.

Jeh Johnson
Sarah Saldaña

Homeland Security Secretary Jeh Johnson (left) believes that "discretion" always needs to include considering positive factors. Does his Immigration and Customs Enforcement director, Sarah Saldaña (right), disagree? (Left: Gabriella Demczuk/Getty; right: Chip Somodevilla/Getty)

Is a policy being violated — or followed too closely?

Over a few days in early March, ICE arrested 2,000 unauthorized immigrants as part of a coordinated enforcement push it called "Operation Cross Check." ICE's statement on the operation said that everyone they'd gotten fit under Priority 1 or 2 of the Obama administration's new guidelines.

But one of those immigrants, reported Esther Yu-Hsi Lee of Think Progress, was a food-industry worker with a culinary degree and a seven-year-old daughter, who, according to his family, had his citizenship application lost by the government when he was nine years old. He had spent time in immigration detention after being charged with drug possession in the late 1990s, and had continued to check in with ICE officials for years after his release. His family claims ICE decided to stop the check-ins in 2006, but on March 5, he was arrested and detained for a "failure to report."

Meanwhile, several immigration lawyers have reported that their local ICE offices are detaining any immigrant with a past criminal conviction — of any kind — without allowing him to post bail, and that this policy comes from ICE headquarters in Washington. In all, says Greg Chen, the advocacy director for the American Immigration Lawyers Association, his organization has received "a flurry of reports from lawyer members that ICE offices ... are throwing the full force of the law against people who are low priorities or not priorities at all."

Lawyers like Leopold are extremely suspicious that the "checklist" approach comes from the current director of ICE, Sarah Saldaña. And a recent controversy, they feel, shows their concerns are justified.

Last week, during a congressional hearing, Rep. Will Hurd (R-TX) asked Saldaña whether she thought every single "criminal alien" should be deported. Saldaña responded: "Yes. If we encounter them, get our hands on them, sure." Furthermore, Saldaña begged Congress to pass a law that would require state and local law enforcement agencies to comply with federal requests to turn over an unauthorized immigrant to ICE. That's actually a direct contradiction of DHS policy, which says state and local police can and should choose when to honor a "detainer" to hand someone over.

The incident demonstrated to some immigration lawyers that ICE director Saldaña believes in the checklist approach to discretion — that if you're a felon, you categorically should be deported

In a statement the next day — just after ICE confirmed the deportation of Max Villatoro — Saldaña attempted to "clarify" that her views were in line with her department. "Any effort at federal legislation now to mandate state and local law enforcement's compliance with ICE detainers will, in our view, be a highly counterproductive step and lead to more resistance and less cooperation in our overall efforts to promote public safety," she said.

The DHS official attempted to explain away Saldaña's comments, saying, "There's very little black and white" in immigration law, but members of Congress "like to box their witnesses into that kind of world." But for the lawyers who have been clashing with ICE in recent weeks, the incident was proof that Saldaña's stance on immigration enforcement is to the right of the people who wrote the administration's memos. More importantly, though, it demonstrated to them that Saldaña believes in the checklist approach to discretion — that if you're a felon, you categorically should be deported.

The fact of the matter is that when you think of prosecutorial discretion as a top-down direction of resources, the logical endpoint is a policy that splits every potential violation of the law into two groups: violators who should be prosecuted, and violators who shouldn't. The DHS official I spoke to pointed to the November executive actions, including both the enforcement memo and the deferred-action proposal. Both were supposed to work on a case-by-case basis, the official emphasized, but "these two memos together attempt to provide that kind of framework."

Some immigration lawyers have suggested to me that at least as long as the deferred action programs are on hold, the answer is to create a positive checklist — for example, a policy saying that if someone's been in the US for 10 years and there's no clear evidence he currently poses a danger to public safety, he should be presumed not to be a priority for deportation. But it's hard to believe that anyone could write a policy that would perfectly delineate exactly which of the 11 million unauthorized immigrants in the US are "felons," and which are "families" — any more than anyone could write a policy that would go through all of the thousands of penalties in the criminal code and perfectly delineate when people should be prosecuted for them.

ICE lineup

ICE's Enforcement and Removal Operations site certainly looks like rounding up immigrants. (Immigration and Customs Enforcement)

What is the role of the civil service in a politicized age?

Many immigration lawyers believe the problem at ICE is organizational — people lower down in the organization failing to implement the policies being laid out by the people at the top. "In other cases, it was clear the field office directors needed to read the memo" written by the agency's director, Leopold says. "Now, we have a director who needs to read the memo" coming from department headquarters.

Of course, part of the conservative critique of the administration's deferred action program is a mirror image of this: the administration might claim it's looking at applications on a case-by-case basis, but the way it's implementing (or planning to implement) deferred action doesn't live up to that standard.

discretion 3

(JacobSt via Shutterstock)

Some of this is simply a policy disagreement: both sides claiming that perfect implementation of prosecutorial discretion would align with their policy priorities. But the fact that the opponents of deferred action assume that agents would want to reject applications for relief, while the opponents of deportation assume that agents want to deport more immigrants, reveals the fundamental truth of bottom-up prosecutorial discretion: the people implementing the policy have priorities of their own.

Many agents, including the ICE union, genuinely believe it's important to deport someone simply for being unauthorized. They genuinely feel allowing unauthorized immigrants to remain in the country constitutes a threat to "public safety" all on its own.

So it's entirely possible they could weigh all the factors in place in Villatoro's case, for example, and decide the "unless" clause isn't important enough to stop him from getting deported.

Many agents genuinely feel allowing unauthorized immigrants to stay constitutes a threat to public safety

This attitude was perfectly in line with ICE's mission when it became its own agency in 2003 — and especially in the mid-2000s, when the Bush administration favored shows of force to demonstrate it was tough on immigration. Now, under a different president from the opposite party, the White House has totally different expectations for the agency and its agents. But the agents themselves haven't changed.

Is it really realistic to expect all government employees to perfectly implement whatever directives come down from the top — and then to do the exact same when the opposite party is controlling the White House?

More specifically, is it realistic to do so in 2015, when the executive branch is increasingly becoming an instrument for policymaking? Immigration happened to be the highest-profile issue of the Obama administration where Congress's failure to get a bill passed led the White House to do things through executive means.

The next administration will surely have its own priorities. It probably won't have a Congress nimble enough to push back against them, or to articulate its own vision for the country. But it won't have its own civil service. A Warren-administration SEC would certainly be tougher on securities traders than a Clinton-administration one — but either one would inherit the same existing workforce to go after them. How would a Republican administration handle an EPA whose staff is accustomed to eight years of Obama? How would it handle a Consumer Financial Protection Bureau that's literally never known life under a Republican president?

The further the pendulum swings from administration to administration, the less realistic it is to expect that the same government employees will be able to carry out each set of policies with equal enthusiasm.

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