Concerns about a Troubling Presidential Precedent and OLC's Review of Its Validity
The OLC opinion on new enforcement priorities for the Department of Homeland Security probably will serve to establish the terrain for battles over the legitimacy of prosecutorial discretion for a long time to come. And there will be other battles. You can bet that Republican Presidents someday will try to invoke President Obama’s actions to undercut other regulatory programs they don’t like.
The opinion actually raises significant questions about the Obama Administration’s own signature exercise of expansive prosecutorial discretion, the 2012 DACA program that shields childhood arrivals from deportation. And it is disingenuous about key elements of its reasoning and its analysis of the new programs in operation. OLC’s decision factors are fine, but they should be – and should have been – applied with more rigor, lest prosecutorial discretion become a vehicle to “rewrite the laws.” (This in-the-weeds slipperiness is why I am not at all confident that the precedent can be confined in the way, for example, that Marty Lederman opines.)