DACA: Prosecutorial Discretion ... or Egregious Abuse of Discretion?

By W.D. Reasoner on April 26, 2013

As probably most readers of the Center's website know, a federal lawsuit was filed by Immigration and Customs Enforcement (ICE) officers in a challenge to the Obama administration's end run around Congress when it refused to move forward with DREAM Act legislation, and instituted instead an administrative deferred action program (Deferred Action for Childhood Arrivals or "DACA") under the guise of its Department of Homeland Security's "prosecutorial discretion" policies.

Many people (myself among them) believe that the program is both unconstitutional, because it infringes on the lawmaking prerogative unique to Congress under the separation of powers, and illegal, because it is not an act of prosecutorial discretion, but rather an abuse of discretion.


Many people also (myself among them) wondered why Congress itself did not file suit to protect its constitutional prerogatives — a federal statute exists that appears tailor-made for such a lawsuit. Take a look at 5 USC § 706(2), which provides U.S. District Courts plenary authority to conduct reviews of the kind of conduct engaged in by DHS in establishing DACA. How disappointing, then, that the matter was left to 10 rank-and-file immigration officers to take on the big guns in their own department.

First, of course, the government moved to have their lawsuit summarily dismissed. Much to the credit of the presiding judge, Reed O'Connor, the motion was denied. Then, on April 8, Judge O'Connor held a hearing in the case, at which testimony was elicited which proved that — despite the DHS justification that DACA actually helps promote immigration enforcement(!), and contrary to multiple public assertions that their statistics have broken records — ICE statistics have been plummeting like a comet in a gravity well.

On Tuesday, Judge O'Connor, in a preliminary decision, ruled that "Plaintiffs are likely to succeed in their claims that the Directive and related provisions of the Morton Memorandum [which lays out the guidelines for "prosecutorial discretion" under which ICE agents must operate] violate 8 U.S.C. 1225(b)(2)(A)", although he deferred a decision on the plaintiffs' request for injunction until after both sides have submitted additional briefs.

My sense is that Judge O'Connor has this exactly right. "Prosecutorial discretion" should be conceived of as an occasional act of justicial mercy when merited by circumstances — not as a unilateral and blanket declaration, for instance, by a police department that "henceforth, we will refuse to arrest or charge violators for any and all traffic offenses" or the like. That kind of action is not only an abuse of discretion, but an egregious act of malfeasance. The administration did step on congressional lawmaking powers, and shame on our senators and representatives for acquiescing without a fight.

But it goes farther than simple acquiescence. The Gang of Eight, a bipartisan mix of congressional leaders, recently introduced a bill in the Senate that would not only legalize the status of millions of illegal aliens; it also specifically acknowledges (and, in so doing, legitimizes) the administration's unconstitutional DACA program — in fact, the bill would give DACA recipients preferential treatment in moving toward receipt of lawful status.

Now here's the rich part: there are provisions in that self-same bill that the Gang of 8 want so much for us to believe is "fair but tough" that lay out new and expanded avenues of judicial review for aliens who want to sue the government if their applications for legalization are denied. Can anyone guess which statute Congress directs that they should use in doing so? Right! That would be 5 USC § 706.