Trump’s Immigration Guidance: The Rule of Law Returns

On Tuesday, John Kelly, President Trump’s secretary of Homeland Security, published a six-page, single-spaced memorandum detailing new guidance on immigration enforcement. Thereupon, I spent about 1,500 words summarizing the guidance in a column at National Review. Brevity being the soul of wit, both the memo and my description of it could have been reduced to a single, easy-to-remember sentence:

Henceforth, the United States shall be governed by the laws of the United States.

That it was necessary for Secretary Kelly to say more than this -- and, sadly, that such alarm has greeted a memo that merely announces the return of the rule of law in immigration enforcement -- owes to the Obama administration abuses of three legal doctrines: prosecutorial discretion, preemption, and separation of powers (specifically, the executive usurpation of legislative power).

To the extent President Obama declined to enforce immigration law (notwithstanding his constitutional obligation to execute the laws faithfully), he did so under the guise of prosecutorial discretion. In the pre-Obama days, prosecutorial discretion was an unremarkable, uncontroversial resource-allocation doctrine. It simply meant that since resources are finite, and since it would be neither possible nor desirable to prosecute every crime, we target law-enforcement resources to get the most crime-fighting bang for the taxpayer buck. That means prioritizing enforcement action against (a) the worst offenders and (b) the unlawful causes of the activity.

This is easily illustrated by federal drug enforcement. There are comparatively few federal narcotics agents, compared, say, to police in a major city. But while both feds and cops have authority to arrest traffickers and consumers of illegal drugs, only federal jurisdiction is interstate and international. Consequently, the best use of finite federal enforcement resources is to limit them to prosecutions of significant felony importation and distribution offenses, leaving it to the states and municipalities to handle street pushers and misdemeanor violations involving the use of drugs.

Significantly, the fact that federal enforcement policy, which is made by the executive branch, does not target lesser felons or users does not mean this policy effectively repeals federal drug laws, which are written by Congress.

The non-targeted crimes are still crimes, and the feds reserve the right to prosecute them in appropriate cases (e.g., if they encounter these offenses in the course of carrying out other criminal enforcement missions).

In the area of immigration enforcement, Obama contorted this resource allocation doctrine into a de facto immunity scheme. That is, the Obama Homeland Security Department announced what it labeled enforcement “priorities.” If an illegal alien did not fit into the priorities, it was as if the alien were insulated against prosecution -- effectively, it was as if there was nothing illegal about being an alien unlawfully present in the United States; it was as if Obama’s policies were a legal defense against Congress’s duly enacted laws.