In March 1977, two Tulsa horsewomen went to a church parking lot to meet an man who claimed to have Morgan horses to sell. Not long afterwards, their bodies were found near Sallisaw, Oklahoma, buried on land leased to Larry Leon Chaney. Chaney was convicted of murder and sentenced to death.
Chaney's case forms the legal backdrop to the announcement last week that the Department of Homeland Security would begin to "defer action" against undocumented immigrants under the age of 30 who have lived most of their lives in the United States and have served in the military or gotten an education. The decision has been widely reported as an "executive order" suspending parts of the Immigration and Naturalization Act. Representative Steve King (R-IA) vowed to file suit against Obama for "planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens."
In fact, the policy change is not an executive order-it was a memorandum from Janet Napolitano, the Secretary of Homeland Security, one of many that have issued over the years directing the enforcement of immigration laws entrusted to DHS.
On the merits, it is a big deal, affecting the lives of as many as 800,000 young people. The "dreamers" have been in limbo for a decade while the political system hacked up hairball after hairball in a quest for immigration reform. But legally, it's not radical. It is, as the memo announces in the first line, an exercise of the Department's "prosecutorial discretion." That's a jarring locution, since deportation isn't a criminal matter.
That's where Larry Chaney comes in. Chaney came within a few days of being the first American executed by lethal injection. His lawyers filed a lawsuit, joined by more than two dozen other death-row inmates, against the Food and Drug Administration, demanding that the FDA block the use of lethal-injection drugs to determine whether they were safe for human use.
Under the statutes, their case looked pretty good. The FDA is supposed to prevent new uses for drugs unless the manufacturers show they are safe. A prescribed use for a drug that produces a 100 percent death rate probably doesn't meet that definition. But the FDA refused to get involved in state executions, citing "our inherent discretion to decline to pursue certain enforcement matters."
The death-row prisoners took the case to the United States Supreme Court. In 1985, in the case of Heckler v. Chaney, the Court held that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." The majority opinion, by then-Justice William Rehnquist, went further, stating that "an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict-a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.'"
Since that time, "prosecutorial discretion" even in civil matters, has been an important doctrine in American administrative law. The idea, if not the name, had been a part of immigration law for longer than that-though, until the 1970s, it was exercised in secret. "Deferred action," which is what the Napolitano memo orders for young undocumented immigrants, was used for decades by the Immigration and Naturalization Service to decide which deportation cases were the best use of the agency's limited resources. During a lawsuit by former Beatle John Lennon, fighting to stay in the United States, the INS was forced to reveal how it was deciding which cases qualified. Since then, directions for this type of discretion have been an established, public part of American immigration law.
"From what I can see, there's nothing really new [about the Napolitano memo] as a legal matter," Shoba Sivaprasad Wadhia, a law professor at Penn State, said in an email. "Prosecutorial discretion has been a part of immigration law for at least 40 years and is premised on both the resource constraints of the agency and the humanitarian reasons why people with strong equities deserve temporary protection." Wadhia's published writings cite memos on the subject issued by immigration authorities going back to 1975. In fact, to Wadhia, the most striking thing about the latest policy is that DHS is developing a formal application process for eligible immigrants. "The positive outcome could be greater transparency from the government," she said.
Because the memo benefits only young, non-criminal, relatively successful immigrants-young people brought to the United States by their families rather than their own decision to break the law-it's hard for opponents to attack it on the merits. So the claim is that it is a lawless use of executive power-an "amnesty" that "enacts the DREAM Act" even though Congress rejected it-is overblown at best. "Deferred action" is not amnesty. It does not provide a path to citizenship-which would have to be constructed by legislation. It's not permanent; some who qualify must reapply every two years, and the whole program can be reversed by a future DHS Secretary. It is a large-scale program; but that in and of itself doesn't make it a "usurpation" of legislative authority, any more than the FDA's policy of ignoring all lethal injections made that policy a usurpation of Congress. Napolitano's memo is directed to officials of DHS, instructing them on the factors they should consider "on an individual basis" in deciding whether to defer action on young undocumented immigrants. Because it permits DHS officials to issue work authorization to those who qualify, the effect will resemble the DREAM Act in one way, to be sure. That bill failed to pass; but not passing a law has no legal effect at all. It certainly doesn't deprive the executive of power it already has. The only question is whether decisions like these are entrusted to by statute to the agency.
In Heckler v. Chaney, Justice Rehnquist noted reasons why an agency might decide not to pursue a particular violation or class of violations:
[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing.
No matter who is in charge of immigration enforcement, discretionary decisions have to be made. The priorities set out in the Napolitano memo make sense to me; those who disagree are welcome to make their policy case against them. But nobody should imagine that new leadership will produce an immigration system in which every undocumented immigrant is immediately deported, or in which every deportation decision is controlled by the text of a statute. Statutes are written in general terms. Somebody has to decide which cases are high priority and which are not. Discretion is always in the room.
Take Larry Chaney's case. In 1984, a federal court remitted his sentence to life without parole. In March 2011, according to the Pryor Creek Times, the Oklahoma Pardon and Parole Board recommended that the governor commute his sentence and allow him to be released. But Chaney is still serving time at the Mack Alford Correctional Center in Stringtown, Oklahoma.
Oklahoma Governor Mary Fallin denied clemency on June 16, 2011. Discretion cuts both ways.
