Perhaps you have heard the story of Daniela Vargas. Daniela is a 22-year-old undocumented Mississippi woman. In February, ICE agents raided her home and arrested her father and brother. Two weeks later, she shared the story of her brother’s and father’s arrests at a press conference called to criticize the ICE raids. She was thereafter promptly arrested by ICE. (She was released last week for reasons not immediately disclosed.)

Daniela has been living in the United States for 15 years. She was a beneficiary of President Obama’s Deferred Action for Childhood Removals (DACA) order and, according to her habeas petition, was picked up during a temporary lapse in her eligibility. The ICE agents who raided her home prior to the press conference told her that they were aware of her lapse in DACA status but were giving her a “hall pass.”

The sequence of events that led to Daniela’s arrest has led to accusations that ICE targeted her in retaliation for speaking out against Administration policy. If that is so, it raises serious legal questions under the First Amendment and the Equal Protection Clause. But even if it is not so, it raises serious legal questions about immigration enforcement discretion that deserve more discussion than they have received.

The problem, in brief, is that when a law is rarely enforced, or is rarely enforced against a class of persons, it permits line officers and prosecutors to enforce it haphazardly or pretextually on a case-by-case basis. Think of jaywalking. If you were arrested for jaywalking, there’s a pretty good chance you were irritating the police officer in some other way that he couldn’t legally nail you on.

The specter of pretextual enforcement is an obvious problem for rights, and courts have been open to the argument that a law too vague to give a person fair notice of her likelihood of arrest—loitering, say—might violate constitutional protections of due process.

But a degree of discretion that results in arbitrary arrests of a population not typically targeted is not just a rights problem. It is also a separation of powers problem. Under a legal doctrine known as desuetude, a judge has the power to refuse to apply a law that has for a long time been intentionally unenforced. The idea, in part, is that by not responding to persistent nonenforcement, the legislature has abandoned the law’s application. A sudden decision to enforce the law converts agents of the executive branch into de facto lawmakers.

There are reasons why desuetude has not generally been part of the public discussion when it comes to immigration enforcement. Most significantly, of all of the state and federal courts, only West Virginia officially recognizes desuetude as a doctrine. Desuetude raises its own separation of powers concerns insofar as it involves a judge refusing to apply a law that is officially on the books and was duly passed by a legislature. Moreover, prosecutorial discretion is fundamental to the American legal tradition, and so the judge who invokes desuetude to save a defendant from arbitrary prosecution walks a fine line.

Even if courts officially recognized desuetude, it is not clear that this doctrine would apply to any particular class of immigrants. West Virginia’s high court requires, among other things, “open, notorious, and pervasive violation of the statute for a long period”—so far so good—but also “a conspicuous policy of nonenforcement.” Even as to out-of-status immigrants, such as Dreamers, who have not historically been an enforcement priority, deportation orders have been more sporadic than nonexistent. DACA was promulgated precisely to remove lingering insecurity about the threat of removal.

Still, there is good reason to introduce desuetude into the immigration discourse. Part of the reason desuetude has not officially taken root in other areas is because in those cases in which it was relevant there has often been another legal tool available to provide relief. I have already mentioned due process. Consider also the unenforced Connecticut birth control law that the Supreme Court invalidated in the 1960s by (famously) creating a constitutional right to privacy. In The Least Dangerous Branch (1962), Yale legal scholar Alexander Bickel had advocated striking the law down via the doctrine of desuetude, but the Court didn’t have to. By contrast, immigrants subject to removal orders often lack viable substantive defenses.

More broadly, the separation of powers concern that desuetude legitimately raises assumes a functioning legislature that is capable of passing laws and willing to do so. This assumption is generous in the present environment. There is no reason to believe that the current Immigration and Nationality Act reflects Congress’s live policy choices. Instead, policy has effectively been determined by the executive branch. As law professors Adam Cox and Cristina Rodriguez have noted, more than 30 percent of noncitizens living in the United States are formally removable, but only a tiny fraction ever will be placed in removal proceedings. Enforcement priorities set over multiple decades and multiple administrations, both Democratic and Republican, have deemphasized longtime U.S. residents without criminal records.

The lived structure of immigration law raises precisely the specter of pretextual, discriminatory, or retaliatory enforcement that the Daniela Vargas case raises. An invocation of desuetude by federal judges—presumably in a habeas petition or on petition from a decision of the Board of Immigration Appeals—would not entail that enforcement of the INA against Dreamers or others not typically subject to removal is impossible. As Guido Calabresi, now a federal judge, argued in A Common Law for the Age of Statutes (1982), the best remedy for a long pattern of nonenforcement might be what is known as a legislative remand: temporary suspension of a statute as to a particular class of persons until the legislature has a chance to deliberate on it and either alter or reaffirm its formal application.

It is not for judges to make immigration policy. But it is not for ICE to do so either. It is time to force Congress back into the conversation.

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