Document Type

Article

Publication Date

2026

Abstract

As President Trump began his second term, he promised the largest mass deportation program in U.S. history, backed by unprecedented increases in immigration enforcement funding. Yet even at historically unprecedented resource levels, the government can reach only a fraction of the tens of millions of noncitizens now subject to deportation. So this Administration, like every administration before it, must make choices about whom to target—and every decision to deport someone necessarily entails an implicit or explicit decision to deprioritize someone else. But who makes those decisions?

Every modern presidential administration has tried to vest such choices in high-level, politically accountable policymakers through agency-wide enforcement guidelines identifying who should—and should not—be targeted for deportation. Yet these prosecutorial discretion guidelines are frequently ignored by line-level deportation officers and immigration prosecutors, who make the individual decisions that, in the aggregate, produce a de facto policy often diverging from the course set by agency leadership. This misalignment between policy and practice poses a significant obstacle to democratic accountability, regardless of one's views on any given enforcement policy.

This Article offers the first longitudinal, empirical analysis of the prosecutorial discretion policies of every presidential administration in the modern era, surveying vast datasets to evaluate their efficacy. From this analysis, we identify the key features that determine the success or failure of such policies and distill proscriptive lessons to help future agency leaders design enforcement guidelines that align stated priorities with line-level practice, mitigating the risks of unchecked enforcement on the ground.

Source Publication

Florida Law Review

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