Image courtesy Minnesota Historical Society

Imagine a system in which an undocumented mother in Florida, who is a primary caregiver to a child with a medical condition, is granted leave to remain in the US, while a mother in the same situation in California is not. Now imagine that the California mother is not even notified of the fact that her application for protection from deportation was denied. And that there are thousands of undocumented parents with similar cases who do not know that it’s possible to apply for that protection.

That is our current immigration system. And last Thursday’s Supreme Court 4-4 split in United States v. Texas affirms that there is no end in sight to the system’s arbitrariness and lack of transparency. The Court’s deadlock leaves in place the appeals court decision that blocked President Obama’s 2014 immigration programs, which would have established a formal application process for immigrants who were brought to the US as children and immigrants whose children are Americans or green card holders to seek protection from deportation, otherwise known as “deferred action.”

The outcry over the Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA) Plus (an extension of 2012 DACA) programs centers on the charge that Obama overstepped his legal authority. Without a decision on the case, we can only speculate on the justices’ views on the case’s particulars. But the focus on executive overreach ignores the way in which his programs represented a dramatic step towards transparency and democratic accountability in immigration.

Even from the standpoint of procedure, Obama’s programs offered a radical innovation in the field of presidential power in immigration.

For Republicans, DACA and DAPA are the most salient example of Obama’s illegitimate extension of executive power. They even occasioned talk of impeachment. Immigration subcommittee chair Senator Jeff Sessions called the programs a “massive alteration of the classical understanding of what laws mean in America,” and the state of Texas asserted in its brief that the administration had “dispensed with immigration statutes by declaring unlawful content to be lawful.”

The administration disagrees. But Obama’s lawyers have defended the programs largely in terms of the President’s authority to set immigration enforcement priorities, giving credence to Republican concerns. And scholars and recent commentators have recognized the growth of the President’s unusual powers in the immigration context.

This fight misses the point. Even from the standpoint of procedure, Obama’s programs offered a radical innovation in the field of presidential power in immigration.

No one has shown this more clearly than Shoba Sivaprasad Wadhia, Director of the Center for Immigrants’ Rights at Penn State Law and an expert on the role of prosecutorial discretion in immigration law. As she observes, Obama moved from the “dark hole” of deferred action and other kinds of prosecutorial discretion in immigration to programs that provide public engagement. There’s a tendency to think that Obama was doing something new, but it’s “so much less about something new, and so much more about transparency.”

Figuring that out was no easy task. Wadhia spent years in that dark hole – filing Freedom of Information Act (FOIA) requests to force immigration agencies to release information about individual cases and digging up internal agency memos used to set policy on when and how to enforce immigration laws.

Her analysis, detailed in her 2015 book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases, reveals a wildly unequal and unpredictable bureaucracy, where individuals in very similar situations are variably deported or granted leave to remain and work by bureaucrats who determine America’s de facto immigration policy with almost no public input or accountability. The number of deferred action grants, and the reasons they are given, appear strikingly inconsistent from one region to the next, but it is impossible to get a full picture, as the immigration agencies themselves only capture that data incompletely.

The current reality of US immigration, however, demands some kind of system for granting status to undocumented individuals on a discretionary basis. Even advocates of deportation have to recognize that the Department of Homeland Security (DHS) has the resources to deport at most 400,000 individuals a year, less than 4% of the estimated undocumented population. And US immigration agencies have long recognized a number of humanitarian factors that could qualify undocumented individuals for leave to remain in the US, or even legal status.

Wadhia’s book lays out the different forms of discretion in how and against whom immigration law is enforced. Deferred action, now the most prominent form of discretion, has been a matter of internal agency policy since at least the 1970s. And that policy has evolved with immigration law and the growth of the undocumented population.

Deferred action, now the most prominent form of discretion, has been a matter of internal agency policy since at least the 1970s.

It has also been largely secret. Immigration attorneys familiar with the immigration agencies know how to file a request for deferred action for their clients, but until the first DACA program was announced in 2012, there were no public instructions for how to make a request, no way of following up about the status of a case, and no mechanism for appeal.

Wadhia was eventually able to identify the primary factors that the US Citizen and Immigration Service and Immigration and Customs Enforcement have used in granting deferred action: having a US citizen dependent; presence in the US since childhood; length of presence in the US in general; being the primary caregiver for an individual with serious mental or physical illness; and suffering from a serious mental or medical condition. But, she notes, it took an almost decade-long relationship with a FOIA officer, and a court case, to get the information she wanted.

The upshot is a clearer view of DACA and DAPA as “the humanitarian face of the long-standing deferred action program,” as Wadhia puts it. They are humanitarian not just because they would (and do, in the case of DACA 2012) afford more people with compelling reasons to remain in the US the chance to normalize their status, but also because undocumented individuals and the general public have information on the who and how of it. And the programmatic consistency and oversight that that brings would significantly increase the likelihood that people in similar situations would have their cases decided in the same way.

Putting this public transparency in context is vital, as one of the key issues in Texas was whether the programs were subject to notice-and-comment rulemaking, according to which a federal agency is obliged to publish a proposed regulation and accept public comments before the regulation can become binding. Although these programs did not go through that process, the public, Wadhia argues, weighed in on them “and then some,” functionally embodying the commitment to transparency.

But, now, given that the Supreme Court deadlock only affects Obama’s programs and does not affect DHS’s ability to consider individual requests, our discretionary system will largely continue to operate behind closed doors. People who would have qualified for DAPA and DACA Plus can still apply for individualized deferred action and other forms of discretion, but they will not go through a standardized application and review process and will have no way of checking up on the status of their applications.

But would any of this be important if Congress could just pass comprehensive immigration reform?

DHS Secretary Jeh Johnson’s memo, which accompanied the announcement of the 2014 programs and remains as agency guidance, identifies the factors DHS employees should consider when making discretionary decisions and discourages detention for certain individuals. It draws on internal agency memos, but was published publicly and is therefore an important, if limited, step in the transparency direction.

But would any of this be important if Congress could just pass comprehensive immigration reform? It’s tempting to see Obama’s programs as an ill-fated stop-gap measure in the face of Congressional inaction. However, while discretion is not an answer to all the complexities of immigration policy, it will continue to be an essential part of any system that recognizes the value in the lives that undocumented individuals and families build in the US. To that end, it’s crucial that, once it has a full bench, the Supreme Court reconsider the case.

Abigail Fradkin

Abigail Fradkin studied political thought and history at Harvard College. She currently works with immigrants and refugees in New York at the nonprofit organization Upwardly Global.

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