Over at the Volokh Conspiracy, the estimable John Elwood questions whether columnist Charles Krauthammer has got wrong whether the president has discretion not to deport large numbers of undocumented aliens without making individualized judgments about their cases. I don’t know immigration law well enough to have an opinion on that subject, though the question is fascinating. I do know detention law well enough to know that Krauthammer should run a correction concerning his brief account of federal detention rules.
On immigration, Krauthammer wrote:
With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.
This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.
This is not discretion. This is a fundamental rewriting of the law.
I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.
Elwood goes on to examine possible precedents for what President Obama has done here, concluding that he’s not sure whether Krauthammer is right or wrong. I don’t know either. I do know, however, that whether Krauthammer is right or wrong on immigration law, he’s certainly wrong on detention law, which he addresses—and mangles—in passing:
Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)
It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law (emphasis added).
The good doctor apparently missed the fight over the NDAA—and a lot of recent case law. Since the NDAA’s passage, the status of unlawful enemy combatants has not been ambiguous at all in statute, much less has the law been silent on the subject. Rather, the detention of members of enemy forces is clearly and unambiguously authorized in statute. Even before that, the Supreme Court had made clear—in Hamdi—that detaining the enemy was a fundamental incident of warfare. And the D.C. Circuit in a growing body of case law had made clear the parameters of the authority to detain.
Put simply: This is a New York Times editorial-type national-security law illiteracy—one Krauthammer should correct.