Immigration Article of the Day: Immigration’s Law’s Boundary Problem: Determining the Scope of Executive Discretion by Peter Margulies

Immigration’s Law’s Boundary Problem: Determining the Scope of Executive Discretion by Peter Margulies, forthcoming Hastings Law Journal

Abstract

In immigration law, executive discretion has become contested terrain. This uncertainty is rooted in historical practice: courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and protective discretion, which safeguards noncitizens’ reliance interests. Moreover, courts have long discerned an internal-external divide in discretion, deferring to executive measures that excluded noncitizens abroad, while reducing deference for measures concerning noncitizens who have already entered the United States. Immigration law needs a cohesive framework for executive discretion. This Article suggests a stewardship model to fill that gap.

Recent developments have emphasized the need for a coherent model of discretion. The Trump administration altered the landscape of executive discretion, seizing every chance to make the law harsher. The Biden administration’s efforts to correct this imbalance have been only partially successful.

For example, the Biden administration has issued a proposed rule supporting the Deferred Action for Childhood Arrivals (DACA) program and has sought to end the Trump administration’s “Remain in Mexico” program, which subjects tens of thousands of asylum seekers to peril. However, for over a year President Biden retained the Title 42 program, which precluded asylum in the name of preventing the introduction of COVID-19. The new administration resisted efforts to end Title 42, even though that program undercuts asylum and does not perform its ostensible public health mission. Only an unfavorable court decision in 2022 spurred efforts to terminate Title 42. At that point, another court enjoined Title 42’s termination, illustrating yet again the confused state of executive discretion.

A workable approach to executive discretion requires cutting through the confusion and returning to first principles. To achieve these goals, the stewardship model highlights three factors: discretion’s fit with the statutory framework; protection of reliance interests; and avoidance of adverse impacts on foreign relations. The Article applies these values to DACA, Title 42, and the “Remain in Mexico” program.

KJ