In a recent essay in the Wall Street Journal, Professor Michael McConnell argues that Judge Andrew Hanen’s February 2015 opinion and order blocking some of the Obama administration’s recent executive actions on immigration should not be understood as questioning the executive branch's authority to exercise "prosecutorial discretion," but rather as questioning the extension of "affirmative benefits" to recipients of deferred action under those initiatives. According to Professor McConnell, Judge Hanen’s opinion “carefully lays out the legal case against the program” and ultimately concludes that "prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making." Such "benefits," he asserts, have "never been part of prosecutorial discretion." On that basis, McConnell concludes that Judge Hanen “narrowly crafted [his] order not to touch on prosecutorial discretion” and that the decree therefore does not interfere with executive discretion to set enforcement priorities.

 

In this essay, I critically assess these claims. McConnell is entirely correct that Judge Hanen at least professes to preserve the executive branch’s ability to establish enforcement priorities and exercise prosecutorial discretion. And it is also true that Judge Hanen exhibits considerable ire over the prospect of "award[ing] … benefits to otherwise removable aliens." However, contrary to McConnell's suggestion, Judge Hanen’s opinion is remarkably sweeping in its tenor and its potential significance. Ultimately, the ruling does not turn on any sort of distinction between the exercise of prosecutorial discretion, on the one hand, and the extension of "affirmative benefits," on the other.