Coercion, Discretion, and the Roberts Court

The Roberts court’s immigration jurisprudence has reinforced the discretionary powers of the government and sharply limited constitutional constraints on the exercise of those powers. As a result, the protection of immigrants’ rights increasingly has become a matter of executive grace. Discretion plays a crucial role in the execution of immigration law, and through its use, the executive can promote humanitarian objectives. But even when protective discretionary acts receive the imprimatur of courts, they do not provide lasting security because they are only as good as the policy preferences of the president in power. Indeed, discretion can also perpetuate overly aggressive enforcement in pursuit of those preferences. The checks the Roberts court has imposed on the operation of the enforcement system tend to reflect a skepticism of government, rather than a meaningful regard for the rights and interests of immigrants, leaving Congress as the only meaningful source of stability for the system and for immigrants themselves.