The Yale Law Journal


A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade

20 Dec 2012

On August 23, 2012, tenImmigration and Customs Enforcement (ICE) officers sued in federal court to block the Obama Administration’s program to grant deferred action to longtime U.S. residents who came here illegally as children.1 Under that program, eligible persons will be shielded from deportation for two years (potentially renewable) and will generally receive work authorization. The covered individuals are sometimes called “DREAMers,” because most would have been given lawful immigration status by the DREAM Act, a bipartisan bill that at times has garnered majority support in both houses of Congress, but has never been enacted.2 The officers claim that the program, officially known as Deferred Action for Childhood Arrivals (DACA), violates immigration statutes and transgresses our constitutional separation of powers. The Department of Homeland Security justifies DACA as a systematic and thoughtful way of exercising prosecutorial discretion. Under the program, the Department exercises its discretion by forgoing enforcement, after careful screening, against young unauthorized immigrants not considered culpable for their unauthorized entry or presence.3

Lead counsel for the officers in this case, Crane v. Napolitano, is Kris Kobach, who was a prime mover behind the recent wave of state and local legislation designed to crack down on illegal migration.4 Kobach is also the elected Secretary of State of Kansas, although he is representing the plaintiffs here in his private capacity and, one assumes, his spare time. Evidently, since the Supreme Court squelched most of those crackdown provisions in its June ruling in Arizona v. United States,5 he feels the itch to find a new stage on which to complain about federal immigration policy.

Policy objections to the new program are fair game, of course, but as a lawsuit this is a very strange beast, and its full and disturbing implications have not been widely noted. In essence, the plaintiff officers say they are empowered to make their own choices about which immigration violators to arrest, no matter what their bosses may say about enforcement priorities. Their position represents both unwise policy and deeply flawed legal analysis.

The suit relies primarily on a superficially attractive and syllogistically neat statutory theory that Kobach first trumpeted in TV appearances and op-eds shortly after DACA was announced in June.6 Under Kobach’s theory, virtually every time an ICE agent encounters unauthorized aliens, he or she has a duty under federal law—with which no supervisor can interfere—to place the aliens into formal removal proceedings. The same argument has also been picked up by congressional opponents of DACA.7 But the argument’s central reasoning is legally erroneous. The theory takes out of context a provision Congress enacted in 1996, marries it with a misunderstanding of two provisions that have been in place for decades, and ignores the actual practice under those provisions.

I present this Essay primarily as a work of statutory interpretation. But it also draws on close personal knowledge of the legislative project that led to major statutory amendments in 1996,8 including the legal provisions on which Kobach relies. From summer 1995 to early 1998, I was on leave from my law-faculty position, where my main specialty has been immigration law, to serve as General Counsel of the Immigration and Naturalization Service. In that capacity, I was involved in hundreds of discussions within the executive branch and on Capitol Hill regarding the immigration-reform legislation—initially as it was being shaped and later as it was being implemented. The Crane lawsuit refashions history and distorts what Congress and the executive branch intended in 1996. This Essay gives a richer account of why Congress adopted the key provisions than may be apparent from the traditional legislative history of committee reports and floor colloquies.

Part I addresses the core statutory argument that the officers’ lawsuit presents. Part II goes on to reflect on the wider implications for sound and accountable law enforcement if the plaintiffs were to prevail.

I. The Statutory Argument

A. The Syllogism

Here is the legal syllogism, as spelled out in the complaint. The argument relies on three provisions of section 235 of the Immigration and Nationality Act (INA),9 a section that governs inspections of people who have not been admitted to the United States. The first of those provisions, section 235(a)(1), was wholly new in 1996, and the other two are slightly revised versions of earlier provisions that have been in the INA since it was enacted in 1952. Specifically, the complaint contends:

  [Section 235(a)(1) of the INA] requires that “an alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers [section 235(a)(3)], which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers [section 235(b)(2)(A),] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding [in immigration court].”10  

The complaint then concludes that “federal law clearly requires Plaintiffs to place [aliens covered by these provisions] into removal proceedings.”11 Kobach’s op-ed is even more sweeping, asserting that Congress “inserted [these] interlocking provisions into the law that require deportation when Executive Branch officials become aware of illegal aliens.”12 He goes on: “[T]he ‘prosecutorial discretion’ that Obama claims he is ordering ICE agents to exercise no longer exists, because Congress eliminated it in 1996.”13 In other words, in Kobach’s view, Congress left no room for prosecutorial discretion, at least not before an unadmitted person has been charged, detained, and haled into immigration court.

B. Legal Flaws

1. Entrants Without Inspection vs. Overstays

Kobach’s statutory argument presents several serious problems. First, he acts as though it applies to all “illegal aliens.” (This is particularly true of the op-ed, but any nuances qualifying the legal argument in the complaint are at best subtly buried.) By its very terms, however, section 235(a)(1) applies only to “an alien present in the United States who has not been admitted”—that is, someone who entered clandestinely away from the port of entry where inspection and admission take place.14 These entrants without inspection (EWIs, in immigration-speak) probably constitute the stereotypical “illegal alien” in the public mind, but by commonly accepted estimates they make up only fifty to sixty-seven percent of the unlawfully present population.15 The rest entered through normal nonimmigrant channels (primarily on a student, tourist, or business visa), were admitted after inspection at the border, and then overstayed or otherwise violated the conditions of their temporary admission. Therefore, up to fifty percent of the unauthorized immigrants encountered by ICE agents would fall outside Kobach’s sweeping claim about the repeal of prosecutorial discretion, and there is no reason to think that different percentages would apply to DACA applicants.

2. How Congress Changed the Treatment of EWIs in 1996

But let us set aside this rather significant qualification on Kobach’s claim (perhaps it was only a made-for-media shorthand) that prosecutorial discretion no longer exists, and henceforth focus only on EWIs. Even as applied to them, the argument, for all its lockstep “triggering,” is unsound. The complaint implicitly argues that there can be no reason for Congress to have specified, in INA section 235(a)(1), that every alien found in the country without having been admitted shall be deemed to be an applicant for admission, other than to trigger the other paragraphs and thus mandate that EWIs be inspected and then detained for removal proceedings. This argument deeply misunderstands a fundamental architectural change that Congress was making in 1996 to the structure of immigration law, and the role that section 235(a)(1) plays in that change. Moreover, the ultimate explanation of that paragraph of the law actually leads in the opposite direction from where Kobach wants the court to go, because it reflects a congressional wish to expand, not contract, the options open to the immigration-enforcement agency as it chooses when and whether to file charges.

To fully understand Congress’s handiwork, we must plunge deeply into the history of some immigration technicalities. Before 1996, and tracing back for at least a hundred years, immigration enforcement was marked by a key dividing line between exclusion and deportation—between blocking unqualified persons from entry and removing them after they had entered.16 The laws contained separate statutory sections setting forth grounds for exclusion and a somewhat shorter and more focused list of grounds for deportation. The statute also provided different procedures for exclusion and deportation, most importantly regarding the burden of proof. To avoid exclusion, the alien applicant for admission bore the burden of proof. In deportation proceedings, however, the burden fell on the government to show that one of the deportation grounds applied. Although the procedural and substantive differences were never great in practical effect and had narrowed over time, the overall provisions remained somewhat more favorable for deportable aliens than for excludable aliens.

Crucially, whether a person would be in exclusion or in deportation turned on whether he or she had entered U.S. territory. Thus applicants who did what they were supposed to—presented their documents at a port of entry—would be in the less favorable position of an excludable alien if their admissibility were questioned. But someone who sneaked across the border and thereby accomplished an entry would be subject to the more advantageous deportation grounds and deportation procedures.17 This ironic privileging of EWIs had drawn adverse comment in several court cases and in academic commentary.18

Changing that framework to end the more favorable treatment of EWIs drew wide support within Congress and the executive branch as immigration reform legislation moved forward in 1995 and 1996.19 As enacted, the new legislation made several changes toward this end. Primarily, it amended the prefatory language in the section setting forth deportation grounds (which, after 1996, have generally been called “deportability grounds”). The repealed language stated that deportation grounds apply to aliens “in the United States.”20 The new language declared the grounds applicable to aliens “in and admitted to the United States.”21 Further, the preexisting deportation ground for entering without inspection was repealed.22 Instead, EWIs would be covered by a brand new inadmissibility ground (the new terminology after 1996, which replaced “exclusion ground”), which renders inadmissible persons “present in the United States without being admitted or paroled.”23 Finally, Congress changed a key paragraph of the definitions section of the INA,24 so that, instead of defining “entry,” the statute would define “admission” or “admitted.”25 In short, the key factor in determining which substantive provisions apply and which procedures govern is now admission, not entry. Because they were never “admitted,” EWIs are now, once charged, treated essentially the same as persons identified as inadmissible (formerly “excludable”) at a port of entry.26

3. Badalamenti and the Statutory Designation of EWIs as Applicants for Admission

The statutory changes just described were the primary engines of the effort to end any favorable treatment of EWIs, and they might well have been enough to secure the basic architectural change that the political branches wanted: making EWIs inadmissible rather than deportable. But there was one more complication that the immigration agencies feared might hamper efficient enforcement against EWIs once that change took effect, and that complication was the real reason that Congress enacted section 235(a)(1). The complication derived from a 1988 decision by the Board of Immigration Appeals (BIA), Matter of Badalamenti,27 which had very limited significance when handed down, but which might have had much wider application after the 1996 amendments.

Exclusion grounds, the BIA noted in Badalamenti, apply to “applicants for admission.”28 In the pre-1996 world, this linkage rarely presented any issue at all. The litigated cases29 almost always involved someone ruled excludable at a port of entry. By the very nature of the process of arrival and port inspection, a person challenging exclusion was clearly seeking admission. The picture becomes a bit more complex, however, because exclusion grounds could also be applied to some persons outside the port-of-entry context: parolees. In immigration law, a parolee is a person who has received official permission to come into U.S. territory for a stated period (which might sometimes extend for years, or even decades). From the beginning, parole as a legal concept did not amount to admission, and a parolee was deemed not to have accomplished an entry.30 Under a legal fiction, a parolee remained constructively at the border and would be treated as an applicant for admission once again (thus subject to the exclusion grounds and procedures) whenever the parole ended. This also rarely presented an issue, however, because parolees generally wanted to stay. When parole termination was litigated, the controversy almost always centered on the propriety of the termination or the substantive interpretation of an exclusion ground.

Vito Badalamenti’s case was different. An Italian citizen, he had been extradited to the United States from Spain in 1984 as one of nineteen defendants charged in a massive indictment meant to break up the so-called Pizza Connection drug-smuggling ring run by his father, Gaetano Badalamenti. In order to stand trial, he had been paroled into the United States. This move had been a standard practice for decades: parole is necessary if extradited defendants are to proceed beyond the port of entry to the jail and then the courthouse, because they would almost always be barred from admission owing to the evidence of their criminal activity. After a seventeen-month Pizza Connection trial, seventeen defendants were convicted, but Vito Badalamenti was acquitted. The local INS office told him he had a week to make arrangements to leave the United States at his own expense. When he missed the deadline, he was taken into INS custody and charged under the applicable exclusion grounds.31

Badalamenti did not dispute the possible substantive relevance of the stated grounds. He argued instead that he was not an applicant for admission and thus not subject to any exclusion grounds at all. Clearly he had not desired to come to the United States, and he would be happy to leave now, but he had been unable to secure travel plans in the time allowed.32 (He did not want to return to Italy, his country of nationality, because he probably faced prosecution there, and initial arrangements with Paraguay fell through.)33

The BIA agreed with his basic argument. It stated that, “once the purpose of parole has been served and parole has been terminated, the alien must be given a reasonable opportunity to depart unless there is evidence that he is an applicant for admission.”34 At some point, the BIA stated, a parolee who fails to depart will become subject to exclusion and to treatment as an applicant for admission, but first he must be given a “fair and reasonable opportunity to depart.”35 The case was remanded to the immigration judge for a hearing on whether Badalamenti had had such an opportunity, including what efforts he had made to secure departure and whether the government had impeded his efforts.36 If the opportunity to depart fell short of these standards, the judge should terminate the exclusion proceedings as premature.

As the immigration-reform legislation was under consideration in 1995, INS and the Department of Justice grew concerned that Badalamenti might apply to EWIs upon their apprehension. That is, now that EWIs could be removed only under an inadmissibility ground, they might claim upon apprehension that they really did not want to apply for admission and that they would happily depart on their own if given a week or two to do so. Under Badalamenti, INS feared that the BIA might allow application of the inadmissibility provisions only to a person for whom INS could present direct “evidence that he is an applicant for admission”37—at least until the person had a reasonable opportunity to depart on his own. In the meantime, lacking authority to charge, much less detain, the person, officers faced the prospect that many EWIs could easily abscond. Congressional staffers who were crafting the new system understood the concern and wanted to make certain to avoid this outcome.38

Congress reacted by stating in section 235(a)(1) that any “alien present in the United States who has not been admitted” shall be deemed, as a matter of law, to be an applicant for admission.39 Accordingly, once the reformed system took effect, INS could immediately charge an EWI, whatever his declared subjective intent, without first giving him a couple of weeks to leave. The congressional purpose was to broaden the discretion of the enforcement agency to choose when to charge an EWI. This new provision gave INS the option to charge EWIs with inadmissibility upon discovery when it otherwise might not have been able to file immediate charges at all because of Badalamenti. To my knowledge, no one at the time even came close to suggesting that this provision required the agency to file charges whenever it encountered an EWI. Kris Kobach has it backward.

4. The Other Provisions of Section 235 of the Immigration and Nationality Act

Even if section 235(a)(1) were read as Kobach argues, it still precludes prosecutorial discretion only if the remaining two paragraphs themselves leave no room for discretion. Those two provisions call, first, for inspection of applicants for admission and, second, for detention leading up to removal proceedings in cases of doubt about admissibility. But versions ofthese two provisions have been in the immigration laws at least since the current Immigration and Nationality Act was adopted in 1952,40 and the longstanding practice of immigration agencies, at the ports of entry where these provisions classically applied, reveals substantial exercises of discretion, without an inexorable march into detention and then immigration court.

First, consider the well-established practice of withdrawal of an application for admission. For many years before 1996, and continuing thereafter, immigration inspectors have annually allowed tens of thousands of applicants for admission in the ports of entry to withdraw their applications, without charging or detaining them or placing them in removal proceedings. Withdrawal permission commonly reflects a judgment by the officer that the individual presented a document with a merely technical flaw or otherwise had made an honest mistake.41 Withdrawal allows the person to go home right away, fix the problem (perhaps by getting a new visa), and return without the automatic disqualifications that attach if a judge issues a formal removal order.42 This practice unmistakably amounts to prosecutorial discretion, routinely exercised for persons who came before an immigration officer for examination and were not “clearly and beyond a doubt entitled” to land.

If Kobach’s argument about the current, only slightly changed language, is correct, then from 1952 to 1996 the withdrawal practice was illegal. Under the Kobach interpretation, all that an examining officer could do upon finding a flaw in the application for admission would be to detain, charge, and bind the person over to immigration court. Congress never thought this withdrawal practice illegitimate or deemed it a violation of the “shall” commands in the governing statute. Indeed, in 1996 Congress gave explicit statutory blessing to this practice of permitting withdrawals, in the discretion of the officer, instead of detaining for removal.43

Perhaps more closely relevant to assessing the legality of DACA are several varieties of immigration parole. Parole, like withdrawal, originated as a purely administrative innovation. It permits a person’s physical presence in the United States even when she could not legally be granted formal admission. The practice was well established by the time parole gained explicit statutory sanction in the original 1952 Immigration and Nationality Act. Consistent with the earlier treatment, Congress expressly provided that parole “shall not be regarded as an admission of the alien.”44

Because that same 1952 Act contained the predecessor provisions to the current section 235(a)(3) and (b)(2)(A), Kobach’s interpretation of those two paragraphs must indicate that parole could take place only after the potential parolee–almost by definition a person “not clearly and beyond a doubt entitled” to admission–had been detained and placed in proceedings in immigration court. To be sure, a respectable percentage of paroles do conform to the Kobach model, because parole is often used to release from immigration custody an ostensibly inadmissible applicant for admission, pending completion of his removal proceedings. Under this type of parole, the person is released from actual physical custody, often after posting bond, based on a judgment that he is neither dangerous nor a flight risk.45

But parole has also been used in hundreds of thousands of cases each year to allow arriving aliens at the port of entry to establish physical presence in the United States, without detention and without the initiation of immigration-court proceedings, even though these persons appear to be inadmissible. Humanitarian parole, granted so that an inadmissible person may receive urgent medical care, for instance, or may be united with a dying relative, furnishes one important example.46 A far more common situation involves advance parole–approved by U.S. Citizenship and Immigration Services (USCIS) upon the application of an alien currently in the United States (and ordinarily awaiting the processing of a benefit) but otherwise unable to reenter in the same status or on the initial nonimmigrant visa if he or she undertakes temporary travel. In fiscal year 2011, USCIS granted more than 245,000 freestanding applications for advance parole and more than 500,000 more applications as part of the adjustment of status process.47 People who receive these types of parole, with few exceptions, are permitted to proceed at liberty onto U.S. territory, after minimal additional processing at the port of entry. Agency practice before 1996 in the ports of entry thus included a history of thousands of paroles allowed without detention, charge, or appearance in immigration court, and that pattern continued smoothly after the 1996 amendments.48 I am aware of no evidence that Congress either intended a change or has objected to the continuing use of parole in this manner.49

If Kobach’s statutory argument in Crane v. Napolitano prevails, it must follow that these convenient and salutary uses of parole at the ports of entry are illegal. The deleterious effects (and utter impracticality) of such a change can be illustrated by focusing on one particular use of parole explicitly recognized in the Inspector’s Field Manual: for an “[e]mergency worker responding to a natural disaster.”50 In earlier years, parole came to be used for such persons because, in disaster situations, time is too short for full visa processing in nonimmigrant categories that include work authorization. Under Kobach’s theory, a European search-and-rescue team or a squad of Canadian electric-power technicians would be allowed to proceed to their duty stations in the aftermath of an earthquake or hurricane only after the insult of detention and the filing of formal immigration charges. That is surely not what Congress intended.

5. Prosecutorial Discretion and the Word “Shall”

Finally, the entire statutory argument in Crane v. Napolitano depends on reading the word “shall” as a categorical mandate wherever it appears, negating any exercise of judgment—at least at any level above the frontline officer. But enforcement statutes, notably in the criminal field, commonly employ that word, and yet discretion survives. For example, a typical petty-larceny statute reads: “Whoever steals . . . the property of another . . . shall be guilty of larceny, and . . . if the value of the property stolen . . . does not exceed two hundred and fifty dollars, shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars.”51 No one considers that such a law absolutely requires police to investigate or prosecutors to charge every time they have even minimal evidence of such a theft. To be sure, officers are unlikely to ignore someone shoplifting groceries right in front of them. But, even in such a case, the officer or district attorney could properly drop the case before charges are filed—based on a judgment that the criminal docket is already overloaded with more serious cases, for example, or that the defendant acted to feed a famished child. The statute’s ostensibly directive language would not render such a decision ultra vires. In this vein, the BIA ruled recently that “shall,” in a different paragraph of section 235, “does not carry its ordinary meaning, namely, that an act is mandatory. It is common for the term ‘shall’ to mean ‘may’ when it relates to decisions made by the Executive Branch of the Government on whether to charge an individual and on what charge or charges to bring.”52

In that decision, the BIA relied on classic prosecutorial-discretion decisions by the Supreme Court in the criminal-justice field, including United States v. Armstrong.53In Armstrong, the Court rejected the defendant’s selective-prosecution argument with these words: “A selective-prosecution claim asks a court to exercise judicial power over a ‘special province’ of the Executive[, which traces to] . . . the President’s . . . constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”54 Armstrong relied in part on Heckler v. Chaney, a landmark decision that generally precludes judicial review under the Administrative Procedure Act of “agency decisions to refuse enforcement.”55 Heckler summarized the reasons for the “general unsuitability” of judicial review in this context:

  [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. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.56  

It is the agency, not each individual enforcement officer, that has the responsibility to make these decisions about resource allocation and overall policy.

The normal selective-prosecution claim, of course, is filed by the accused, alleging that she was improperly singled out. But the ICE officers’ suit also amounts to a selective-prosecution suit, although it comes from the opposite angle. The officers assert that their supervisors require them to be selective, when the statute’s “shalls” do not permit selectivity. But as long as the same constitutionally based discretion that the executive branch possesses in the criminal realm also applies to immigration enforcement—as the BIA and the Supreme Court have indicated57—then discretion continues, and it belongs not personally to line officers, but to the President and his delegates who head the relevant agency.

II. A Broader Perspective

Now that we have taken a deep dive into the technicalities, let us regain some altitude and think about the kind of enforcement regime we would have if Kobach’s argument prevails. Supervisors could not tell front-line officers how to focus their enforcement efforts, ostensibly because Congress has said directly to the line officer: you must pick up every EWI you ever encounter and place them all in proceedings. An officer assigned to an interagency task force charged with investigating and then prosecuting or deporting major foreign drug dealers would have to break off from pursuit of the organization’s leaders if he came across EWIs in the course of his investigation. An officer assigned to a fugitive-operations team—which concentrates on locating and removing persons who ignored a final order of removal issued after a full hearing—would have to divert her attention and use whatever time might be required to arrest and charge all EWIs encountered at the site where she expected to find the fugitive. It is even possible that an officer ordered to interview foreigners booked into a local jail after arrests for common crime could escape discipline for failing to show up if he could demonstrate that he spent the whole morning instead arresting and charging EWIs he happened to encounter on his way to the jail.

Equally important, Kobach’s relentless mandate to arrest EWIs would apply even when detention space is full, even when local immigration-court dockets are overwhelmed. Any effort by supervisors and managers to prioritize based on judgments about the relative threat posed by various individuals, by reference to humanitarian concerns, or even just to accommodate the real world of limited enforcement resources, would be illegitimate.

This portrait of the anarchic enforcement regime that might result if the suit is successful is not fanciful. In fact, the complaint reveals that one of the plaintiffs has apparently already tried to act in this fashion. According to a section of the complaint titled “Harm” (evidently included to help establish that the officer plaintiffs have standing), plaintiff James Doebler was told that he had to stop issuing charging documents “to certain illegal aliens” who were not within the guidelines. His supervisors then moved to impose a three-day suspension when he still went ahead and arrested someone who was a low priority.58

In any other law enforcement environment, this discipline would be unremarkable. Picture a mayor and police chief directing officers to join a new concerted operation to arrest drug dealers. But one of the officers decides instead to spend his day arresting unlicensed sidewalk hucksters whom he sees along the streets. A police officer who insists on arresting just the people he chooses, defying the chain of command that runs up to electorally accountable officials, is rightly regarded as a rogue agent—a troubling thing in a democracy. The officer is entitled to disagree with the policy, but not to defy it. Those who do not like the policy can work to elect a different mayor. In the meantime, enforcement officers have to follow orders.

No sensible law enforcement agency operates the way Kobach advocates. If Congress meant in 1996 to remove all enforcement discretion, particularly in view of the President’s constitutionally based authority over enforcement, one would expect a far more explicit statement than the complicated three-step triggering on which Kobach relies. Moreover, one would have to wonder why Congress would pick out EWIs, most of whom are diligent hard workers, and elevate them above criminals or national security threats for an absolute requirement to file charges. (The Administration, it should be noted, has firmly anchored DACA in ongoing policy changes meant to focus most immigration-enforcement resources on criminals, recent border crossers, and serious violators of the immigration laws.)59 Nothing in the legislative history supports Kobach’s counterintuitive reading. Indeed, twenty-eight members of Congress wrote to the Attorney General in 1999, indicating that prosecutorial discretion survived the 1996 legislation and urging that it be used more systematically to reduce hardship and promote fairness. The signers included several Republicans normally seen as hard-liners on immigration, including Representative Lamar Smith of Texas, the current Chairman of the House Judiciary Committee, and Representative F. James Sensenbrenner, Jr., of Wisconsin, the previous Republican chair of that committee.60

Kobach’s relentless push for blanket and indiscriminate enforcement, here and in the state legislation he helped draft and defend, contributes mightily to the bitter polarization on this issue—although he shares that blame with a few advocates on the other side whose maximalist opposition to enforcement initiatives gives little practical respect to immigration restrictions enacted in law. Those of us who hope someday to see a viable regime that restores credibility to our immigration laws lament stances such as Kobach’s. Enforcement without a sense of proportion—or even of sensible administration in the real world of limited resources—will fail at restoring the rule of law in this fractious and troubled realm.

In Arizona v. United States, the Supreme Court emphasized the federal government’s “broad discretion” in immigration enforcement, a discretion that is grounded in the President’s constitutional powers and also “embraces immediate human concerns.”61 The Crane challenge to DACA is technically deficient for the many reasons canvassed here. But it deserves rejection primarily because of its blindness to this larger principle, so recently reaffirmed.

David A. Martin is the Warner-Booker Distinguished Professor of International Law and Joel B. Piassick Research Professor of Law at the University of Virginia School of Law. The author served as General Counsel of the Immigration and Naturalization Service from 1995 through 1997 and returned to government service as Principal Deputy General Counsel of the Department of Homeland Security from 2009 through 2010. The views presented here are the author’s and should not be taken as the views of the Department of Homeland Security or any other government agency. Thanks go to Andrew Schoenholtz, Nicholas Perry, Paul Virtue, and Michael Wishnie for helpful comments on an earlier draft, and to Jennifer Bryer for excellent research assistance.

Preferred Citation: David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 Yale L.J. Online 167 (2012),