WSJ Still Doesn't Know How Prosecutorial Discretion Works, Makes Up Its Own Law Instead

The Wall Street Journal is celebrating a ruling from a lower-court judge who has temporarily blocked President Obama's exercise of prosecutorial discretion over undocumented immigrants by repeating a litany of right wing-media myths, some of which were repeated in the legal decision itself.

On February 17, federal district court Judge Andrew Hanen issued a preliminary injunction that will block the Department of Homeland Security's implementation of the president's recent executive actions on immigration in the face of GOP opposition to immigration reform. These actions, which will defer deportations for some undocumented immigrants and were scheduled to open the application process today, have long been criticized by right-wing media as "unconstitutional," despite the fact that there is plenty of legal and historical precedent for the order.

Hanen's ruling -- which not only goes against other recent lower-court rulings, but also Supreme Court precedent -- found a receptive audience at The Wall Street Journal. The Journal has been particularly critical of Obama's immigration actions, erroneously suggesting the administration had not sought a legal justification for his order before issuing it and denouncing Obama for acting “on his own whim because he's tired of working with Congress.” In a February 17 editorial, the Journal commended Hanen, calling his decision “a vindication of the 26 states that brought the challenge and, more significantly, for the rule of law”:

Last November the Department of Homeland Security published memos instructing immigration enforcers to disregard federal laws that require deportation of the undocumented and place strict limits on who may work in the U.S. The White House and DHS claim this “deferred action” is nothing more than routine prosecutorial discretion, as if the department is merely conceding that its officers cannot hunt down and deport the millions of illegals in the country.

Judge Hanen dismantles that fiction. As he points out, the DHS memos amount to “a massive change in immigration practice” that reorders “the nation's entire immigration scheme.” Instead of the historical norm of forbearance in individual cases, the memos devote 150 pages to detailing a blanket policy for whole classes of immigrants -- meaning that discretion is “virtually extinguished,” as Judge Hanen writes.

The memos also actively bestow benefits that Congress never granted, such as the right to work, obtain Social Security numbers, and travel to and from the U.S.

The editorial is a rehash of myths about the executive action. For example, it is true that Congress never granted undocumented immigrants “the right to work,” but neither did Obama's executive order. Undocumented immigrants who qualify for deferred action will become eligible for work authorization permits, not because of Obama's order, but because of a federal law that was passed in 1986 under Ronald Reagan.

The Journal, which has repeatedly suggested that Obama's action is not a valid use of prosecutorial discretion because it applies to “whole categories of people,” must have been pleased to see Hanen adopting this myth as well in his ruling. In reality, each application for a deferral is considered on a case-by-case basis -- a perfectly lawful exercise of discretion. As former chief counsel for the U.S. Citizenship and Immigration Services (USCIS) Stephen Legomsky explained at the January 29 confirmation hearing for U.S. attorney general nominee Loretta Lynch, the Department of Homeland Security immigration memo “says not once, not twice, but over and over again that officers on the ground are instructed to look at the facts of each individual case, to evaluate them on an individualized basis, and specifically, to exercise their discretion.” Legomsky went on to point out that the form that USCIS uses for deferred action applications even “lists the possible reasons for denial and explicitly lists 'exercise of discretion.'”

Far from exempting “whole categories of people,” USCIS has used its discretion to deny 32,000 deferred action applications on the merits.

The Journal also presents Hanen, a George W. Bush appointee, as a “meticulous” judge dedicated to the rule of law -- but the editorial ignores the fact that a different federal judge in Washington, D.C., dismissed a similar case last December. The judge in that case, filed by Maricopa County sheriff and anti-immigration activist Joe Arpaio, determined that Arpaio “would face a number of legal obstacles to prevail” because the “deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation's immigration laws” that is permissible under federal law and has been “endorsed by Congress.” Instead, the editorial board focused on "[o]ur own view" of the constitution and erroneously claimed states can opt out of federal immigration law if they disapprove of the president's actions. The Journal neglected to mention that the Supreme Court has repeatedly affirmed the supremacy of the federal executive over immigration enforcement, with conservative Justice Anthony Kennedy most recently noting that "[a] principal feature of the removal system is the broad discretion entrusted to [federal] immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all."

The Journal also approved of Hanen's determination that Obama's actions may have violated the Administrative Procedures Act, despite the fact that both Republican and Democratic presidents have repeatedly used executive actions of this type. As administrative law expert and law professor Cass Sunstein pointed out:

The law here is based on the 1946 Administrative Procedure Act, which governs many activities of executive agencies. The APA does indeed require Homeland Security to seek public comment on any “proposed rulemaking” -- except it does not have to do so when announces “general statements of policy.”


In the case of the Obama administration's “deferred action” immigration plan, it follows that if the plan left no room for the exercise of discretion, public comment might well have been required. If, for example, Homeland Security had said illegal immigrants who meet certain requirements have the right to stay in the U.S., Judge Hanen would have been on firmer ground.

But that is not what happened. On the contrary, the deferred action program calls for immigrants to make individual applications. As the Justice Department explained, the plan provides for “case-by-case discretion,” not a blanket rule. As Hanen himself acknowledged, lower courts have said that agencies need not seek public comment if they remain “free to consider the individual facts in the various cases that arise.”

The Journal editorial also makes no mention of Hanen's previous anti-immigration statements.

As The New York Times reported, Hanen said in a 2014 opinion that Obama's deportation policy was “an open invitation to the most dangerous criminals in society,” even though these statements were irrelevant to the case at hand. It is hardly a surprise that the Republican officials who signed on to this lawsuit would apparently shop around for a judge like Hanen.

Photo of President Obama by Pete Souza, via The White House/Flickr under a U.S. Government work license.