Say you're a high-level official in some federal agency under a new administration, with an eye toward shifting that agency's priorities away from stuff you think is less important, like X, and toward stuff you think is more important, like Y. What do you do, short of ordering them to do Y and to stop doing X? Well, you can certainly send a memo to all agency staff telling them that they ought to spend less time on X and more time on Y. But the agency already has a set of processes set up for X, and the staff are so used to them that they don't even notice any conscious decisions about "whether or not to do" X. (Plus, a lot of them, having gotten hired under the old administration, think X really is important.) By the same token, doing Y just isn't something that occurs to them on a daily basis. Changing the agency's priorities, in that case, isn't going to happen when you write high-level memos; it might start happening, though, when all the small, nuts-and-bolts instructions of bureaucracy that your office sends out every day reflect the priorities you've described and show your staff how to bring Y into its daily routine and put X aside every once in a while.
I've been thinking about this recently because of the Obama administration's stance on granting relief from deportation to some undocumented immigrants, in particular students who would have been eligible for the DREAM Act if five more senators had voted for it last December. (Note: I work in immigration, but my thoughts in this post, as always, are entirely my own.) As Adam reported, the White House is extremely resistant to granting relief to a group of immigrants at once, and President Obama often says he "doesn't have a choice" about whether or not to "enforce the law." But DHS does claim to grant "deferred action" on a case-by-case basis to particularly worthwhile cases -- that is to say, DREAM-eligible students. More generally, the administration has routinely said that it's trying to focus its immigration-enforcement energy on capturing "criminal aliens," not DREAMers -- heck, in the State of the Union the president said that "it makes no sense" to deport "talented, responsible young people." So how are these priorities actually getting shifted? How serious is the push to avoid deporting DREAM students?
Obviously, this is a big question. But an ICE "toolkit" released late last week, which explains when prosecutors should use certain legal documents, has this paragraph under the heading "What options are available to a prosecutor who needs to keep an alien witness, victim, or defendant in the United States for a criminal trial if that individual is not legally authorized to remain in the United States?"
Deferred Action (DA) is not a specific form of relief but rather a term used to describe the decision-making authority of ICE to allocate resources in the best possible manner to focus on high priority cases, potentially deferring action on cases with a lower priority. There is no statutory definition of DA, but federal regulations provide a description: “[D]eferred action [is] “an act of administrative convenience to the government which gives some cases lower priority.…” See 8 C.F.R. § 274a.12(c)(14). There are two distinct types of DA requests: (i) those seeking DA based on sympathetic facts and a low-enforcement priority, and (ii) those seeking DA based on his/her status as an important witness in an investigation or prosecution. Basically, DA means the government has decided that it is not in its interest to arrest, charge, prosecute or remove an individual at that time for a specific, articulable reason.
If I'm the hypothetical agency head I described at the beginning of this post -- if I'm seriously invested in changing what my agency actually does -- this doesn't cut it for me. Sure, there are references to "deferred action based on sympathetic facts and a low-enforcement priority," but what those sympathetic facts might be isn't specified -- and there's nothing instructing an aggressive prosecutor who doesn't want to stop deporting DREAM-eligible students that it's not "in his interest" to do so. Furthermore, a prosecutor would only read this section to begin with if he wanted to find out what to do with a "witness, victim or defendant" in another trial. The heading and the table of contents give no indication that deferred action "based on sympathetic facts" is a tool that an ICE prosecutor should have.
Of course, even if this particular toolkit did reflect what the administration says it wants to do, there's no guarantee that the prosecutors on the ground would respond accordingly. It's incredibly difficult to change an agency's priorities through this kind of Sunstein-esque "nudging" and subtle instruction. But that's the corner the administration has painted itself into, because it claims -- in public, at least -- that it can't issue a clear instruction to grant deferred action to all DREAM-eligible students. The interesting thing is that when it's talking to itself, in the toolkit, it admits a lot more leeway in granting deferred action than it tells the press. Compare Obama's statement about "I, as the President, am obligated to enforce the law. I don't have a choice about that" with "deferred action means the government has decided it is not in its interest."
If ICE really does have a way to "focus on high priority cases," why isn't this reflected in the way Obama talks about the issue? And why isn't the agency making every effort to tell prosecutors when to use deferred action, in keeping with what it says it "makes sense" to do? If this is an honest attempt to shift a bureaucratic priority, it doesn't seem to be going too well.
