Faithful Execution and Enforcement Discretion

This Article uses Deferred Action for Parents of Americans and Lawful Permanent Resident program (DAPA) to explore the tension between the discretion granting and discretion‐limiting features of the Faithful Execution Clause. Guidance from the courts on the scope of administrative enforcement discretion is sparse, and likely to remain so. The OLC opinion on DAPA’s legality attempted to develop a framework for determining when an exercise of enforcement authority breaches the Executive’s constitutional obligations of faithful execution. That framework embeds certain immigration‐specific elements, but its potential relevance transcends the immigration context. It is worth asking, then, both what the Faithful Execution Clause means and whether the OLC framework properly measures and constrains the scope of administrative enforcement discretion.

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