Memorandum: Legal Authority To Expand Deferred ActionTo: Interested PartiesFrom: Center for American ProgressDate: Nov. 12, 2014

OverviewA wide body of unambiguous federal case law makes clear that the Executive Branch has broad prosecutorial discretion over the enforcement of federal law. Prosecutorial discretion, of course, is the decision by a prosecutor to enforce, or not enforce, the law against an individual in a specific instance. That exercise of discretion is rooted in the Presidents constitutional authority to take Care that the Laws be faithfully executed,[footnoteRef:2] and is the inevitable by-product of enforcement in a universe of limited resources. [2: U.S. Const. Art. II, 3; United States v. Armstrong, 517 U.S. 456, 447 (1996); Heckler v. Chaney, 470 U.S. 821, 832 (1985).]

The courts have repeatedly affirmed that this broad discretionary authority extends to the agency context, when a federal agency like the Department of Homeland Security is the decision-maker, rather than a criminal prosecutor.[footnoteRef:3] And more specifically, federal courts have explicitly concluded that it extends to immigration matters.[footnoteRef:4] In the immigration context today, where there is a profound mismatch between enforcement resources and enforcement targets, Executive Branch discretion in deciding how to allocate those resources is unavoidable. [3: See Heckler, 470 U.S. at 832.] [4: See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (A principal feature of the removal system is the broad discretion exercised by immigration officials. . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all . . .).]

Judicial review of enforcement decisions based on prosecutorial discretion is disfavored because, among other things, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.[footnoteRef:5] And in the agency context, because the decision to initiate administrative actions shares to some extent the characteristics of the decision of a prosecutor in the executive branch [,] courts are similarly hesitant to review agency decisions not to enforce.[footnoteRef:6] [5: Wayte v. United States, 470 U.S. 598, 607 (1985).] [6: Heckler, 470 U.S. at 832.]

Over the years there have been numerous written agency policies guiding the exercise of discretion in immigration enforcement, the most recent of which was the June 2011 memo from John Morton, the former Director of Immigration and Customs Enforcement (ICE).[footnoteRef:7] These memos identify what types of individuals and what types of conduct should be prioritized for enforcement and conversely who and what should be low priorities. The current articulated prosecutorial discretion standard for ICE and for Citizenship and Immigration Services (USCIS) is principally one of pursuing those cases that meet the agencys priorities for federal immigration enforcement generally.[footnoteRef:8] [7: Immigration and Customs Enforcement Memorandum, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011).] [8: Id.]

Although prosecutorial discretion often occurs in the normal course of enforcement, the government can also establish policies that allow individuals to come forward and request an exercise of discretion in their case. And in the immigration arena, the government has exercised its discretion through a variety of administrative mechanisms, including deferred action.Deferred action is a discretionary determination, recognized in statute and regulation, to defer removal of an individual as an act of prosecutorial discretion.[footnoteRef:9] Decisions are made on a case-by-case basis following an individualized review of the applicants request. For decades, federal officials in both Republican and Democratic administrations have utilized deferred action in individual cases and implemented policies that made it available to particular classes of people. [9: See INA Section 237(d)(2); 8 C.F.R. Section 274a.12(c)(14)]

In short, prosecutorial discretion is so deeply ingrained in our constitutional architecture that it amounts to an unexceptional exercise of executive power. Yet despite the wide latitude afforded the executive branch, it is also true that the discretion is not unbounded and can be reinforced or constrained (to some degree) by Congress.[footnoteRef:10] Several constitutional and statutory constraints establish outer limits on the administrations authority to expand deferred action. [10: See Heckler, 470 U.S. at 832-33]

This brief provides additional background on deferred action and analyzes the constitutional and statutory constraints on an expansion of deferred action. It concludes that, as long as the Administration operates within those constraints, there are no legal obstacles to an expansion of deferred action.BackgroundImmigration officers are entrusted with the power to make individualized enforcement decisions based on the availability of resources, agency enforcement priorities, and humanitarian concerns. A wide variety of individualized enforcement decisions are subject to prosecutorial discretion, including initiating removal cases, granting deferred action, granting parole, staying a final order of removal, executing a removal order, and deciding to issue or cancel a notice of detainer.[footnoteRef:11] [11: Immigration and Customs Enforcement Memorandum at 2-3.]

The Executive Branch has long used prosecutorial discretion in enforcing immigration law. As a 1959 textbook on immigration reform explained, Congress traditionally has entrusted the enforcement of its deportation policies to executive officers and this arrangement has been approved by the courts.[footnoteRef:12] This practice has been constant through both Republican and Democratic administrations. During the George W. Bush Administration, for example, the Principal Legal Advisor for ICE explained the Administration policy that some cases cry for an exercise of prosecutorial discretion.[footnoteRef:13] [12: Charles Gordon & Harry N. Rosenfeld, Immigration Law & Procedure 406 (1959). ] [13: Immigration and Customers Enforcement Memorandum, Prosecutorial Discretion, (Oct. 24, 2005).]

Deferred action is also a long-standing practice. The Executive Branch has used it for decades to ensure the efficient and effective administration of the Immigration and Nationality Acts (INA) detention and deportation provisions. In fact, every President since Eisenhower has utilized deferred action or similar administrative mechanisms to exercise discretion in removal decisions.[footnoteRef:14] [14: See Executive Grants of Temporary Immigration Relief, 1956-Present, American Immigration Council, (Oct. 14, 2014), available at http://www.immigrationpolicy.org/just-facts/executive-grants-temporary-immigration-relief-1956-present.]

For example, in 1977, the Attorney General temporarily suspended the deportation of the Silva letterholders, who were foreign nationals from the Western Hemisphere living in the United States without legal authorization. Their deportation was suspended during the pendency of a class action filed on their behalf, which sought to reclaim 145,000 visa slots that were incorrectly counted against the quota for their countries.[footnoteRef:15] [15: See CRS Memorandum, Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (July 13, 2012) (July 2012 CRS Memorandum).]

Another example of the large scale use of deferred action came in 1990, when President George H.W. Bushs Immigration Commissioner expanded a blanket deferral of removal for all spouses and children of the individuals legalized under the 1986 Immigration Reform and Control Act.[footnoteRef:16] That program protected some 1.5 million individuals from removal, an estimated 40% of the undocumented population at the time. [16: Id.]

Moreover, federal regulations and policies have long authorized deferred action. Following the actions taken on behalf of Silva letter holders, the Immigration and Naturalization Service (INS) in 1978 promulgated a broad statement regarding the availability of deferred action, which it revised in 1981. That policy allowed INS district directors to recommend consideration of deferred action in appropriate cases.[footnoteRef:17] The 1981 Instruction explained that: The deferred action category recognizes that the Service has limited enforcement resources and that every attempt should be made administratively to utilize these resources in a manner which will achieve the greatest impact under the immigration laws. The executive branch has also issued a number of regulations providing for deferred action.[footnoteRef:18] [17: See MadaLuna v. Fitzpatrick, 813 F.2d 1006, 1008 n.1 (9th Cir. 1987).] [18: See, e.g., 8 C.F.R. 214.14(d) (allowing for deferred action in the U-visa context); 8 C.F.R. 214.11 (allowing deferred action to T visa applicants); 70 Fed. Reg. 70992-70996 (Nov. 25, 2005) (providing deferred action to foreign students impacted by Hurricane Katrina).]

In September 2012, USCIS implemented the Deferred Action for Childhood Arrivals (DACA) program. DACA does not confer substantive rights, immigration status, or pathways to citizenship on those that meet the programs eligibility criteria.[footnoteRef:19] Instead, eligible individuals are granted the opportunity to request a determination of whether they should be granted deferred action consistent with DHSs existing prosecutorial discretion policy. [19: Childhood arrivals must make a request to USCIS for deferred action. In order to make a request an applicant must have: (1) been younger than age 31 as of June 15, 2012; (2) come to the United States before age 16; (3) continuously resided in the United State for five consecutive years; (4) entered the United States without inspection before June 15, 2012 (or have had lawful immigration status expire as of that date); (5) graduated from high school, currently be in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States ; (6) not been convicted of a felony or serious misdemeanor; and (7) been physically present in the United States on June 15, 2012.]

For successful applicants, USCIS defers removal proceedings for two years, subject to renewal. Under existing regulations, such individuals may apply for employment authorization. As of June 2014, USCIS had accepted 685,544 requests for deferred action under the program. It had approved 580,946 requests and rejected 23,883 requests, with the rest pending action.[footnoteRef:20] [20: USCIS, Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2014,available at http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/DACA_fy2014_qtr3.pdf ]

Constitutional ConstraintsNotwithstanding the executive branchs broad discretionary authority to expand deferred action, the Constitution does impose constraints on the Executive Branchs decision not to enforce the removal provisions of the immigration laws in certain circumstances. First, the Constitution imposes a duty on the President to take Care that the Laws be faithfully executed, and thus prevents the Executive Branch from refusing to enforce a law simply because the President disagrees with the law. Second, the president may not selectively enforce the immigration laws based on constitutionally suspect criteriasuch as race, gender, or religion. Third, the president may not usurp Congresss role in legislating. As discussed below, however, none of these limitations presents an obstacle to a deferred action program modeled on the DACA program instituted in June 2012.Take Care ClauseThe first constitutional constraint on the Executive Branchs authority to expand the use of deferred action is the Take Care Clause of the Constitution, which provides that the President shall take care that the Laws be faithfully executed.[footnoteRef:21] While one could conceive of an Executive Branch enforcement policy that might violate the Take Care Clauseif, for example, the President simply refused to enforce an immigration law at all because he substantively disagreed with itno such objection can be raised against either DACA or any similarly constructed future deferred action program, for at least three reasons. [21: U.S. Const. Art. II, 3.]

First, the Obama Administration is actively enforcing and implementing U.S. immigration laws, including the provisions for removal of persons present without authorization and (especially) criminal aliens. Just last year, ICE removed more than 400,000 individuals, 99% of which met one or more of the agencys civil immigration enforcement priorities.[footnoteRef:22] ICEs choice to develop intelligent priorities for the use of its enforcement resourcesto weigh national security, public safety, border security, and humanitarian concernsdoes not violate the Take Care Clause. To the contrary, with limited budgetary resources, ICE is compelled to prioritize cases to administer the immigration laws effectively and efficiently. [22: Marc R. Rosenblum & Kristen McCabe, Deportation and Discretion: Reviewing the Record and the Option to Change (Migration Policy Institute, October 2014), available at http://www.migrationpolicy.org/research/deportation-and-discretion-reviewing-record-and-options-change]

Second, the use of prosecutorial discretion in immigration enforcement is not a new development that undercuts existing law, but rather has long been a central element of the immigration system.[footnoteRef:23] Deferred action itself has been used in individual removal cases (e.g., John Lennon) and been made available to specific classes of foreign nationals (e.g., foreign students impacted by Hurricane Katrina, individuals applying for relief under the Violence Against Women Act, and widows and widowers of U.S. citizens). [23: See supra at 2-3 (describing the constancy of prosecutorial discretion over several decades and through administrations of either political party). Just last year ICE issued a prosecutorial discretion-based enforcement directive urging restraint in enforcement actions against alien parents, legal guardians, and primary caretakers of minors who are U.S. citizens or lawful permanent residents. U.S.C.I.S. Directive No. 11064.1, Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities (August 23, 2013). The Parental Interests Directive does not yet apply to the parents of children present in the United States with no permanent legal status (e.g., DACA-eligible minors).]

Third, we are not aware of any court decision invalidating a discretionary enforcement policy as a violation of the Take Care Clause. Although that does not preclude a novel enforcement of that constitutional provision, it makes such a challenge unlikely to succeed, particularly in light of the two factors discussed above. Selective EnforcementThe second constitutional constraint on deferred action is that the government cannot selectively enforce laws on bases prohibited by the Constitution. An expanded deferred action policy that utilized constitutionally suspect criteria, such as race, would raise serious constitutional questions. But neither DACA nor the potentially broader use of deferred action modeled on DACA rests on any such suspect criteria, making this constraint theoretical. (It bears noting that it appears unlikely that any person or entity would even have the standing to raise such a challenge. Only an impacted member of an otherwise protected class would be injured by selective prosecution, and foreign nationals generally cannot assert selective prosecution as a defense to removal.[footnoteRef:24]) [24: See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999) (As a general matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.).]

Separation of Powers Any expansion of deferred action may also have to contend with two separation of powers arguments that have been raised by critics of DACA. Those critics have charged that DACA is unlawful either as a program implemented in direct contravention of Congressional will or as action taken without an adequate delegation of authority by Congress. Neither argument is persuasive in the context of DACA or with respect to a broader deferred action program modeled on DACA.First, critics have charged that DACA is unlawful because it represents an attempt to afford an immigration benefit to the same population of aliens to whom Congress has failed to extend relief. That unenacted legislation, the DREAM Act, would confer conditional permanent resident status for certain immigrant students and would also allow them to apply for permanent legal status as long as they attend college or serve in the U.S. Armed Forces. This critique is not persuasive for at least two reasons. First, although a substantially similar group of people would benefit under both programs, DACAunlike the DREAM Actconfers no substantive rights, immigration status, or pathway to citizenship. Because the DREAM Act would modify immigrants substantive rights under federal immigration law, legislation would be required. DACA (and a broader form of deferred action) does not have that effect, but rather constitutes a channeling of Executive Branch discretion within the constraints of existing law. The mere fact that the Executive Branch might take a step that is within its broad enforcement authority but which Congress has not specifically authorized, does not render that action contrary to congressional intent. Second, critics also charge that Congress did not provide the Executive Branch with intelligible principles to establish and implement the DACA program. This argument under the non-delegation doctrine claims that 103(a)(3) of the INA is far too broad a grant of statutory authority to meet the intelligible principles standard required for the Executive Branch to execute its lawmaking authority.[footnoteRef:25] But the non-delegation doctrine has never been used to invalidate an exercise of executive enforcement discretion. That is because the doctrine acts as a limit on Congresss power to vest authority in the Executive Branch, not on the Executive Branchs authority itself. Congress always legislates against a background that includes the fundamental principle that the Executive Branch has enforcement discretion. [25: See, e.g., Whitman v. Am. Trucking Assn., Inc., 531 U.S. 457 (2001). ]

Moreover, since the mid-1930s, virtually every delegation of lawmaking authority by Congress to the Executive has been upheld[,] and it is highly unlikely that a court would apply this moribund doctrine to an immigration program when Congress has repeatedly delegated power to the Executive Branch in this arena.[footnoteRef:26] This issue poses no meaningful challenge to the expanded use of deferred action. [26: Id. at 282.]

Statutory ConstraintsFederal statutes also impose some specific constraints on the manner in which deferred action may be expanded, who may benefit from the expansion, and the overall scale of the expansion. First, the Impoundment Control Act prohibits the taking of any . . . executive action or inaction which effectively precludes the obligation or expenditure of budget authority, except in specific circumstances that may not apply in this context. Second, appropriations riders require DHS to conduct a background check before granting an immigration benefit, including deferred action, to any individual. Third, the Immigration and Nationality Act also contains language explicitly regulating the granting of immigration benefits, such as adjustment of status, so a deferred action program could not grant such benefits. And fourth, the Administrative Procedure Act (APA) generally prohibits the creation of a new substantive rule without engaging in notice-and-comment rulemaking. As with the constitutional constraints described above, none of these limitations will prevent the expansion of a deferred action program modeled on DACA.[footnoteRef:27] [27: Other objections that have been raised to DACA and the expansion of any such programs are clearly meritless and warrant only brief discussion. For example, DACA has been challenged as in conflict with 1225(b)(1)(A) of the Immigration and Nationality Act, which states: If an immigration officer determines that an alien . . . who is arriving in the United States or . . . is inadmissible . . . the officer shall order the alien removed from the United States without further hearing or review . . . . 8 U.S.C. 1225(b)(1)(A) (emphasis added). In Crane v. Napolitano, No. 3:12-cv-03247, 2013 WL 1744422 (N.D. Tex. 2013), the court held that this provision prohibited immigration officials from granting deferred action to arriving and inadmissible aliens, due to the mandatory shall in the statute. The case was subsequently dismissed for lack of jurisdiction and has not been addressed by other courts. Indeed, commentators have roundly criticized the Crane holding and its interpretation of shall in the INA context. See, e.g., Jeffrey A. Love & Arpit K. Garg, Presidential Inaction and the Separation of Powers, 112 Mich. L. Rev. 1195, 1200 (2014) (arguing that critics of DACA have not presented a cogent legal argument and citing the Crane decision as representing a minority view); Lauren Gilbert, Obama's Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 256 (2013) (discussing the Crane decision but concluding that DACA falls squarely within the Presidents powers); see also 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) (concluding the use of shall in the INS affords the Executive Branch broad discretion over immigration enforcement decisions). Further, Cranes treatment of the word shall is inconsistent with many other federal decisions. See, e.g., Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc) (holding that the Attorney General has discretion to hold that a non-aggravated felony constitutes a particularly serious crime for purposes of withholding of removal despite the statutes use of shall); Matter of E-R-M &L-R-M, 25 I. & N. Dec. 520 (2011) (holding that the shall in 1225(b)(2)(B) is permissive rather than mandatory). ]

Impoundment Control ActThe Impoundment Control Act regulates the Presidents authority to impound, i.e. not spend, funds that Congress has appropriated. There are two categories of impoundment that the President may not undertake without Congressional approval: deferral and rescission.[footnoteRef:28] The Act defines deferral to include any . . . executive action or inaction which effectively precludes the obligation or expenditure of budget authority. [footnoteRef:29] This provision prevents the President from refusing to expend resources appropriated by Congress on the grounds that he disagrees with the policy choice underlying the appropriation.[footnoteRef:30] [28: See 2 U.S.C. 683 (setting forth procedure for rescission of budget authority); id. 684 (setting forth procedure for deferral of budget authority).] [29: Id. 682.] [30: See City of New Haven, Conn. v. United States, 809 F.2d 900, 909 (D.C. Cir. 1987) (holding that Section 1013 of the Impoundment Control Act, 2 U.S.C. 684, remov [ed] any colorable statutory basis for unchecked policy deferrals by the President of appropriations (emphasis in original)).]

A decision by the Executive Branch to refuse to enforce provisions of the immigration laws could violate the Impoundment Control Act if it had the effect of precluding the expenditure of funds that Congress had appropriated for immigration enforcement. For example, for fiscal year 2014, Congress appropriated $5,229,461,000 for salaries and expenses for ICE, not less than $2,785,096,000 [of which] is for detention and removal operations and not less than $1,600,000,000 [of which] shall be available to identify aliens convicted of a crime who may be deportable, and to remove them from the United States once they are judged deportable.[footnoteRef:31] If an expanded deferred action policy prevented ICE from expending those resources, it could constitute an unlawful deferral. [31: Department of Homeland Security Appropriations Act, 2014, P.L. 113-76, 128 Stat. 247, 251 (2014).]

Nonetheless, the Impoundment Control Act presents no obstacle to the expanded use of deferred action, for several reasons:First, and most significantly, even with a broadened deferred-action program in place, it is virtually certain that the Executive will expend all of the funds that Congress appropriates for any particular fiscal year for detention and removal. The number of persons who can be removed in any particular year, given resource constraints, is but a fraction of the number of removable persons present within the United States. Moreover, a deferred-action program would allow the Executive to focus its detention and removal priorities on those persons presenting particularly significant threats to national security. Second, the appropriations at issue are lump-sum appropriations, which agencies have discretion to allocate among specific programs, projects, or items within the scope of the appropriation.[footnoteRef:32] Consequently, DHS has substantial discretion over how it spends the appropriated funds, so long as it stays within the very broad parameters of the statutory language. (Of course, Congress could include more specific language in future appropriations bills.) [32: See Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ([T]he very point of a lump sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way. . . . [A] fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions . . . .); UAW v. Donovan, 746 F.2d 855, 860-861 (D.C. Cir. 1984) (Scalia, J.) (A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit.) ]

Third, an expanded deferred action policy would have at most a contingent, uncertain impact on future enforcement spending. As an initial matter, the issuance of an expanded policy might, due to implementation delays, have little to no impact on DHSs ability to spend presently-appropriated funds. Any impact on future expenditures would (A) only affect funds not yet appropriated; (B) result from case-by-case decisionmaking, with each individual case having no material effect; and (C) be highly contingent on funding and enforcement decisions made by future Congresses and agency officials. In these circumstances, it is unclear whether a deferred-action policy would constitute an executive action which effectively precludes the obligation or expenditure of budget authority governed by the Impoundment Control Act.Fourth, as discussed above, the use of prosecutorial discretion is grounded in the Presidents constitutional authority and well-established in the immigration context.[footnoteRef:33] Courts will hesitate to read the Impoundment Control Act, in conjunction with appropriations legislation, to effectively override that discretion by requiring the Executive Branch to spend fixed sums carrying out enforcement actions that it would have otherwise declined to pursue. [33: See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (A principal feature of the removal system is the broad discretion exercised by immigration officials.)]

Appropriations RestrictionsA rider on the Department of Homeland Security Appropriations Act of 2014 imposes a concrete procedural limitation on any expanded deferred action policy. That provision requires that a background check be performed on an alien before any immigration benefit is granted.[footnoteRef:34] Because deferred action qualifies as an immigration benefit, any expanded deferred action policy must incorporate background checks in the same manner that DACA already does. [34: See 113 HR 3457, at 269 (SEC. 524. None of the funds made available in this Act may be used by United States Citizenship and Immigration Services to grant an immigration benefit unless the results of background checks required by law to be completed prior to the granting of the benefit have been received by United States Citizenship and Immigration Services, and the results do not preclude the granting of the benefit.).]

An appropriations rider also provides that DHS shall maintain a level of not less than 34,000 detention beds.[footnoteRef:35] At present, DHS correctly interprets this language as a detention capacity requirement rather than a detention utilization requirement. See [Testimony of Secretary Johnson before House Appropriations Committee in March 2014]. As a result, this mandate would not conflict with any expanded use of deferred action. [35: Department of Homeland Security, Consolidated Appropriations Act, 2014, P. L. 113-76, P. 128 Stat. 251.]

Immigration and Nationality Act The Immigration and Nationality Act (INA) does not contain any express limits on deferred action relief. Nevertheless, the INA does contain detailed rules for granting benefits that are more permanent and substantial than deferred action. For example, the INAs adjustment of status provision sets forth specific categories of persons who may apply for adjustment of status.[footnoteRef:36] The comprehensive nature of that list implies that Congress did not authorize the Executive Branch to create new categories of people who may receive a status adjustment. Consequently, any expanded deferred action program should not attempt to authorize recipients to adjust their status directly or obtain other benefits in a manner that contravenes existing law. [36: See 8 U.S.C. 1154.]

Administrative Procedure ActThe Administrative Procedure Act (APA) places procedural requirements on federal agencies. Section 553 of the Act requires agencies to afford notice of a proposed rulemaking and an opportunity for public comment prior to a rules promulgation, amendment, modification, or repeal. This process, including the litigation that often follows, is frequently used by opponents of a policy to challenge or delay a rule. However, interpretative rules, general statements of policy, [and] rules of agency organization, practice or procedure are exempted from the notice and comment requirement.[footnoteRef:37] The Manual defines general statements of policy as statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.[footnoteRef:38] [37: 5 U.S.C. 553(b)(3)(A). In determining the scope of this exception, the Supreme Court has deferred to the definition of the term general statements of policy in the 1947 Attorney Generals Manual on the Administrative Procedure Act (the Manual). See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 546 (1978).] [38: MadaLuna v. Fitzpatrick, 813 F.2d 1006, 101213 (9th Cir. 1987) (citing the Manual, at 30. n. 3 (1947) (emphasis removed)).]

In the most directly pertinent case on point, a federal court of appeals held that the 1978 and 1981 Immigration and Naturalization Service (INS) Operating Instructions relating to deferred action were general statements of INS policy, not subject to the requirements of notice-and-comment rulemaking.[footnoteRef:39] In reaching its decision, the court addressed when an agency directive is considered a substantive rule, for which notice and comment procedures are required, or a general statement of policy, for which they are not.[footnoteRef:40] [39: See 813 F.2d at 1012.] [40: Id. at 1013. ]

Under the APA, a general statement of policy preserves [the officials] flexibility and their opportunity to make individualized determination[s].[footnoteRef:41]To be such a general statement of policy, the directive (1) must operate only prospectively, (2) must not establish a binding norm, and (3) must leave INS officials free to consider the individual facts in the various cases that arise.[footnoteRef:42] [41: Id. (quotation marks omitted).] [42: Id. at 1014 (quotation marks omitted). Other circuits use similar analyses. See S.E.C. v. Markowski, 277 F. Appx 903, 905 (11th Cir. 2008) (This court generally differentiates on the basis that general policy statements leave agencies free to exercise discretion whereas rules establish binding norms.); Ctr. for Auto Safety v. Natl Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 2006) (noting the difficulty in distinguishing between general statements of policy and agency rules, and looking to whether the statement reflect[s] final agency action or constitute[s] binding rules.); Am. Hosp. Assn v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987) (Agency actions or statements falling within the three exemptions are not determinative of issues or rights addressed. They express the agencys intended course of action, its tentative view of the meaning of a particular statutory term, or internal house-keeping measures organizing agency activities. They do not, however, foreclose alternate courses of action or conclusively affect rights of private parties. (internal quotation marks omitted)); Burroughs Wellcome Co. v. Schweiker, 649 F.2d 221, 224 (4th Cir. 1981) (stating that the policy at issue was a general statement of policy because it operated only prospectively and did not establish a binding norm, but rather [t]he agency retain[ed] discretion to require clinical investigations in appropriate cases and to approve or disapprove individual NDAs on a case-by-case basis.).]

A key factor considered by most courts is whether the policy provides sufficient discretion to the agency. For example, the Eleventh Circuit held that a new policy requiring detention for Haitian immigrants without any discernible guidelines for discretionary parolea departure from prior policydid not qualify as a general statement of policy because such a broad rule of detention with undefined exceptions is susceptible to rigid enforcement with no opportunity to avoid the rule's harsh results. [footnoteRef:43] In contrast, the Fourth Circuit allowed the revocation of an interim rule without notice and comment where the rule was in fact a general statement of policy because authorities retained the discretion to deny relief to aliens who established eligibility under the interim rule.[footnoteRef:44] [43: Jean v. Nelson, 711 F.2d 1455, 1482 (11th Cir. 1983).] [44: Chen Zhou Chai v. Carroll, 48 F.3d. 1331 (4th Cir. 1995). Note that courts have not required that every aspect of a policy incorporate discretion. In Haitian Centers Council, Inc. v. McNary, a memorandum instructing INS officers to conduct a second round of interviews of certain asylum applicants that were identical in form and substance to the first round was deemed to be a general statement of policy becauseeven though the requirement to conduct the second set of interviews was mandatorythe policy itself did not change the criteria [asylum seekers] must meet in order to receive asylum. Id., 807 F. Supp. 928 (E.D.N.Y. 1992).]

DACAand any broadening of deferred action modeled on DACAplainly qualifies as a general statement of policy under the APA. The directive is intended to apply only prospectively to those who seek relief and it does not create a hard and fast rule that amounts to a binding normnot everyone who meets the criteria to request deferred action under DACA will receive it. Rather, those who meet certain criteria are invited to request relief and then USCIS is free to consider the individual facts in the various cases that arise in determining whether or not to grant deferred action. The DACA policy does not alter the agencys discretion to give or decline such relief. Instead, it merely articulates the fact that such discretionary relief is potentially available to those with certain characteristics that suggest they are a low enforcement priority, and then invites that specific class of individuals to request deferred action. Any expansion of deferred action to other low priority individuals that shares these characteristics with DACA will be exempt from notice and comment rulemaking.

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For additional information, please contact:Marshall Fitz: mfitz@americanprogress.org // 202-741-6378Pat Collier: pcollier@americanprogress.org // 202-741-6382

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