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Government by Waiver—Immigration Edition

3:49 PM, Jun 28, 2011 • By ADAM J. WHITE
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By now it is well known that President Obama's big government model disproportionately relies on "waivers" to exempt certain companies and unions—disproportionately located in friendly political districts—from the generally applicable requirements of Obamacare. Whether or not the president's new "government by waiver" effort is unconstitutional—as law professor Philip Hamburger argues—it certainly is pernicious. As professor Richard Epstein urged in his excellent National Affairs essay, "government by waiver" is "among the most serious challenges to the rule of law in our time."

obama hands hips

Until now, President Obama's abuse of discretion has been largely limited (at least in public debate) to the infamous Obamacare waivers. But no longer. Fox News reports that the U.S. Immigration and Customs Enforcement (ICE) is promoting its own version of government by waiver, with respect to the enforcement of immigration laws.  

In a new memo to field offices, special agents, and counsel, ICE offers a list of nineteen "factors" to consider in deciding whether or not to enforce immigration laws in any given case. The factors range from whether the illegal immigrant—or his "immediate relative"—served in the U.S. military, to whether he has a criminal record, to whether he has "ties and contributions to the community, including family relationships."

Atop the list, rather ominously, is the question of whether prosecution fits "the agency's civil immigration enforcement priorities," whatever those might be. And the list concludes with a reminder that the list is "not exhaustive," and no particular factor is "determinative." In other words, this list offers the bare minimum, not outer limits, of reasons to consider in deciding whether and how to apply immigration laws in any given case.

To be clear, there are good things to be said for this type of memo. Agencies necessarily must decide how to allocate scarce resources, and that judgment call is the traditional basis for a prosecutor's or executive's "prosecutorial discretion." Furthermore, it is good that the agency memorialized these considerations in writing, rather than keeping its "waiver" policy in a black box.

Or at least that's the theory. In this case, ICE has effectively nullified the benefits of transparency by listing so many factors, and then by stressing that its list is not exhaustive. Rather than promoting the rule of law by defining and limiting the role of prosecutorial discretion to the greatest practicable extent, this memo offers practically unlimited basis for waiving the immigration laws in any given case. An officer or lawyer eager to grant an effective waiver will have no trouble finding one or more "factors" that justify his decision—regardless of whether those factors, rather than other unstated priorities, actually underlie the waiver.

If ICE truly is worried about its lack of resources, then it should ask Congress to either grant it more resources or narrow the scope of its responsibilities. And if President Obama is truly concerned about the immigration laws, he should urge Congress to change them. In the meantime, Congress should demand that ICE offer evidence that the agency's resources truly are "limited" enough to justify this broad, ad hoc waiver policy.

Adam J. White is a lawyer in Washington.

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