Balkinization: Concluding Thoughts: Line Drawing, the Separation of Powers, and the Responsibilities of the Political Branches:
by Adam Cox and Cristina Rodriguez
There is widespread agreement that the Executive Branch may exercise prosecutorial discretion in individual cases, incorporating humanitarian factors and efficiency concerns into its judgments about which cases to pursue. And there is nearly universal agreement that the President may not decline to enforce the law, or “rewrite” Congress’s laws, to put it in terms used by OLC. But the vast space between these two poles is where the debate over the President’s initiatives lies. Over the last several days—both on this blog and around the nation—that debate has crystalized around four central questions concerning the legality of the administrative relief laid out by President Obama last Thursday.
(1) To be lawful, must relief be closely tied to statutorily articulated congressional priorities?
(2) Is it permissible for prosecutorial discretion to be exercised “categorically,” or must it proceed on a “case-by-case” basis?
(3) Does the fact that the President’s actions extend a benefit—work authorization—rather than just withhold a sanction affect their legality?
(4) Is the relief simply too big in scope to constitute a lawful exercise of prosecutorial discretion?