Peter Margulies

Volume 74, Issue 3, 679-764

In immigration law, executive discretion has become contested terrain. Courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and protective discretion, which safeguards noncitizens’ reliance interests. Moreover, courts have long discerned an internal-external divide in discretion, deferring to executive measures that exclude noncitizens abroad, while reducing deference for measures concerning noncitizens who have already entered the United States. Immigration law needs a cohesive framework for executive discretion. This Article suggests a stewardship model to fill that gap.

Recent developments have emphasized the need for a coherent model of discretion. The Trump Administration altered the landscape of executive discretion, seizing every chance to make the law harsher. The Biden Administration’s efforts to correct this imbalance have been only partially successful. For example, the Biden Administration has issued a final rule supporting the Deferred Action for Childhood Arrivals (DACA) program and has issued enforcement guidelines that prioritize threats to national security and public safety and address recent irregular entries at the border. The Biden Administration has also sought to end the Trump Administration’s “Remain in Mexico” program, which subjects tens of thousands of asylum seekers to peril. However, for over a year, President Biden retained the Title 42 program, which precluded asylum in the name of preventing the introduction of COVID-19. That program undercuts asylum and does not perform its ostensible public health mission. Only an unfavorable court decision in 2022 spurred efforts to terminate Title 42. At that point, another court enjoined Title 42’s termination, illustrating yet again the confused state of executive discretion.

A workable approach to executive discretion requires returning to first principles. To achieve these goals, the stewardship model highlights three factors: fit with the statutory framework, protection of reliance interests, and avoidance of adverse impacts on foreign relations. This Article applies these values to DACA, the Biden enforcement guidelines, Title 42, and the Remain in Mexico program.