Prosecutorial Discretion: The Dog That Didn’t Bark in the Immigration Oral Argument—Yet

Posted in: Government

On Monday, the Supreme Court heard oral argument in United States v. Texas, the challenge to the Obama administration’s programs that would de-prioritize deportation of four million undocumented immigrants. Two procedural questions dominated the discussion. Does Texas have legal standing to challenge the programs? And if so, is Texas objecting to anything other than two words in the government memorandum announcing one of the programs—“lawfully present”—which, according to the Solicitor General, could be deleted from the memorandum without any legal impact?

United States v. Texas is a profoundly consequential case for the millions of undocumented immigrants who could benefit from the challenged programs. It also has enormous political implications, especially in the current presidential election season, when the two leading Republican contenders are vying to outdo one another in how harsh each can be towards undocumented immigrants. But the case does not appear to present the opportunity for the Court to address what may be the most fundamental question that the political firestorm over the Obama administration’s policies on immigration, marijuana, and other matters has sparked: what is the scope of the president’s prosecutorial discretion not to enforce laws duly enacted by Congress?

That’s unfortunate. As I explain below, the question is profoundly important, and it transcends current politics.


The two programs at stake in United States v. Texas are an expansion of the 2012 policy of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The “deferred action” to which the name of each program refers is deportation. Under expanded DACA and DAPA, the federal government would assure roughly four million law-abiding undocumented immigrants with substantial ties to the United States that, although they are technically eligible to be deported, the government has decided—for now—that it will make enforcement of the immigration laws a low priority with respect to them. Eligibility for deferral of deportation also results in other benefits, most importantly the ability to work legally in the United States.


In order for the Supreme Court to resolve the case, it must first find that Texas has legal standing to object to expanded DACA and DAPA. Texas argues (and the lower courts accepted) that the state-law obligation to provide driver’s licenses to persons deemed eligible for deferred action would cost the state money, and thus satisfy the requirement of an “injury” that the Court’s cases locate in the Constitution’s Article III.

The arguments regarding standing displayed a curiously flipped political valence. Some of the conservative justices invoked Massachusetts v. EPA, a 2007 ruling from which they dissented, in which the Court held that standing rules are relaxed when a state challenges a federal administrative agency’s failure to act. Meanwhile, liberal justices suggested that Texas should not be granted standing based on its self-inflicted injury, thereby invoking the Court’s 2013 ruling in Clapper v. Amnesty Int’l USA, from which they dissented.

To the extent that it is possible to view arguments about standing without reference to the merits, it looked like the best case was made by attorney Thomas Saenz, representing intervenors—three undocumented immigrant mothers living in Texas whose children are U.S. citizens and would be eligible for withholding of deportation under DAPA. He suggested that the argument put forward for standing by Texas is a non sequitur: Texas contends that work authorization and various other benefits exceed the scope of the authority Congress conferred on the executive branch, but invalidation of these benefits would not have any impact on the expenses associated with providing driver’s licenses to expanded-DACA and DAPA-eligible undocumented immigrants. In lawyer-speak, the injunction Texas seeks would not redress its ostensible injury.

The Merits

During the oral argument, the justices appeared to be evenly divided on standing. They also appeared divided on the merits, but not over the issue that you might expect.

Despite what you may have heard or read, Texas does not challenge the ability of the president to set immigration enforcement priorities. Nor does Texas challenge the president’s ability to do so wholesale, rather than only on a case-by-case basis. Rather, at stake in United States v. Texas are the other benefits that come in the wake of eligibility for expanded DACA and DAPA. As Texas and its amici frame the case, the programs are not merely a matter of government forbearance but of affirmative conferral of status—especially the right to work—on eligible undocumented immigrants.

For his part, Solicitor General Donald Verrilli argued that Texas and its amici were challenging the wrong government policy. The right to work, eligibility for Social Security benefits, and other matters to which the plaintiffs object, he said, are conferred by other longstanding statutes and regulations, not by expanded DACA and DAPA themselves.

Much of the argument turned on whether the inclusion of the phrase “lawfully present” in the expanded DACA/DAPA memorandum was an attempt by the executive branch to give itself powers that Congress had not delegated to it. Solicitor General Verrilli treated the focus on that phrase as misguided. He offered to strike the language from the memorandum because, he argued, the benefits at issue arise independently of the language.

Both Scott Keller, the attorney for Texas, and Erin Murphy, on behalf of the Republican-led House of Representatives, resisted the Solicitor General’s characterization. They argued that they were not simply objecting to the phrasing of the challenged memo—although it was unclear exactly why not.

Possible Outcomes

The Court has a number of options. Perhaps the most likely result is a 4-4 split on both standing and the merits. Such a split would affirm the lower court’s ruling but set no precedent. Because the administration lost in the appeals court, the program would be dead, pending the outcome of the election or the unexpected confirmation of Judge Merrick Garland to the Supreme Court.

It is also possible that one or more conservative justices could join with the four more liberal justices to find that Texas lacks standing. In general, conservative justices are less willing to find standing than liberal justices, and so there could be sufficient shared ground on the standing question to garner a majority.

Finally, the Court could rule on the merits either for or against the legality of the challenged programs.

Prosecutorial Discretion

The one thing the Court almost certainly will not do is find a violation of some general constitutional rule circumscribing the president’s power to exercise prosecutorial discretion not to enforce the law. That’s because, as noted above, Texas does not argue that government forbearance from initiating deportation proceedings against individuals or a large class of undocumented immigrants violates the president’s constitutional duty to “take Care that the Laws be faithfully executed.”

Equally importantly, President Obama does not assert any power to choose not to enforce laws with which he disagrees. In its briefs and during the oral argument, the government contended that expanded DACA and DAPA seek to carry out, rather than undermine, the priorities set by Congress, which has not provided the administration with anything like the resources that would be necessary to enforce the immigration laws to their full extent. To be sure, Texas and House Republicans disagree with that characterization, but there is consensus among the parties that (except in some areas where the Constitution commits matters to sole presidential authority), Congress can choose the enforcement priorities for the president to follow.

That consensus is noteworthy. In a 2013 case involving nuclear waste storage, Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit (speaking only for himself on this point), opined that given “the President’s Article II prosecutorial discretion, Congress may not mandate that the President prosecute a certain kind of offense or offender.”

Judge Kavanaugh’s position is thoughtful but, in my view, dangerous. Readers who share President Obama’s policy priorities (as I do) should ask themselves whether they would be comfortable with a President Trump or a President Cruz deciding not to enforce tax laws, environmental laws, labor laws, or any other laws that he decided to de-prioritize. As a general matter, progressives have more to fear from unfettered prosecutorial discretion in the executive branch than do conservatives, because, other things being equal, progressives want the government to act, whereas conservatives do not.

Meanwhile, demographic trends suggest that more often than not we will have Democratic presidents. Hence, conservatives also have reason to be wary of unfettered prosecutorial discretion in the executive branch.

These considerations suggest that, however else the justices are divided in United States v. Texas, they should be able to find common ground in affirming the proposition that the Constitution permits Congress to limit the president’s use of prosecutorial discretion. True, the affirmation would only be dicta, because the case does not involve a challenge to prosecutorial discretion, but it would be profoundly important dicta, because it would promote a vital safeguard of our constitutional system. Here’s hoping that the justices are not so divided that they cannot take advantage of an opportunity to espouse a principle that they should all endorse.