by Harry Litman, former United States Attorney for the Western District of Pennsylvania, lawyer, and visiting professor at the School of Global Policy and Strategy at UC San Diego.
The case for DAPA, the contested immigration program that provides for not deporting certain aliens who are parents of U.S. citizens or of lawful permanent residents, comes down to two undisputed numbers: 11 million and 400,000.
The first is the estimated number of illegal aliens in the United States. The second is the approximate number of persons who can conceivably be deported every year given the resources Congress allocates to the detention and removal of undocumented aliens.
Given those hard numbers, it is no secret, and Congress plainly intends when it allocates funds, that DHS must exercise broad and deep discretion in determining which aliens are eligible for deportation in the first place. It is therefore no surprise that the oral argument in the case, which took place on Monday, featured extensive back-and-forth about the role of discretion in immigration law enforcement.
In fact, the need for such broad choices is a pervasive feature of federal law enforcement in general, not just in the immigration area. With the resources that they are allocated, federal authorities can prosecute only a very small fraction of the people who break federal. So they make choices – not just case-by-case by categories, set out in advance of the prosecution decision.