legal ethics; professional responsibility; administrative law; government lawyers; DACA; prosecutorial discretion


On June 15, 2012, the Obama administration announced a significant change in immigration policy: Homeland Security Secretary Janet Napolitano began to instruct immigration officials to defer enforcement actions against those noncitizens who would likely be eligible for relief under the DREAM Act, should Congress choose to pass it. This program, which came to be known as Deferred Action for Childhood Arrivals (DACA), has become the most significant immigration-benefits program in a generation. Not since Congress passed a comprehensive reform bill in 1986, which included a pathway to citizenship, has an immigration program so quickly and positively changed the lives of unauthorized migrants. Under DACA, migrants who met criteria mirroring those included in the DREAM Act could pay an application fee and apply for deferred-action status. If granted such status, these migrants would be taken out of the pool of removable migrants on a two-year renewable basis. Equally important, DACA conferred additional benefits, including employment authorization that allowed beneficiaries to enter the formal labor market. Prior to 2012, the Department of Homeland Security (DHS) circulated prosecutorial discretion memos, which laid out removal priorities and instructed immigration officials to close cases for migrants who did not fit those priorities. These memos came to be known colloquially as the “Morton memos” after U.S. Immigrations and Customs Enforcement (ICE) Director John Morton, who authored them. So, why did DHS move away from this prosecutorial-discretion model to DACA to screen out Dreamers from the removal pipeline? This Article joins the conversation regarding the shift to implement DACA and, in doing so, adds an empirical dimension. Drawing from seventeen interviews with political appointees within the executive branch during the Obama administration, as well as documents obtained under the Freedom of Information Act (FOIA), this Article makes two points. First, our findings tend to confirm the “centralization” thesis. Our interview subjects—political appointees within the Obama White House and DHS—tended to confirm that DACA was intended at least in part to neutralize the influence wielded by frontline ICE officers, who tended to embrace an aggressive approach to enforcement. Second, this Article draws attention to an element of the DACA story that has thus far appeared intermittently or as an afterthought: the role of lawyers in the enforcement and administration of our nation’s immigration laws. Our data shows that political appointees embraced competing notions of government lawyering as they attempted to find relief for Dreamers through regulatory channels.