Three missing pieces in The President and Immigration Law

Guest Blogger

For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).

Aziz Huq

“The President and Immigration Law” is a first-rate contribution not just to legal scholarship but also the interdisciplinary study of American state development. Sweeping across the decades and centuries, integrating doctrinal, institutional, historical, and empirical analyses, Adam Cox and Cristina Rodríguez advance a powerful descriptive account and a startling normative claim. Both their positive and normative contributions hinge upon the centrality of the executive branch—and especially the presidency—in first the historical development of immigration policy from the mid-nineteen century onward and then contemporary tussles over the Muslim Ban and DACA. As Cox and Rodríguez recognize [196], variants on this story can be told in other parts of the regulatory state. Foreign affairs, fiscal policy, and monetary policy are other sites at which the same story can be observed. Yet the most compelling aspect of their analysis is their close-textured reading of immigration law and policy-making: We are rarely too far from the grain of that distinctive question raised by the flow of human bodies across borders. What ensues is laudable specificity and an avoidable of intractably nebulous theory. 

In that spirit, I want to identify three ‘missing pieces’ in their analytic and normative conclusions. In each case, the ‘missing piece’ is a factor of distinctive, albeit not unique, relevance to immigration law. In net, my three ‘missing pieces’ add up to a gap in their account.  In my judgment, this lacuna poses serious questions about the normative ambitions of Cox-Rodríguez project.

Let me begin with one of the main analytic contributions of the book. This is the “two-principals model of decision-making” that Cox and Rodríguez both “elucidate and … defend” [192]. In this model, Congress and the president jointly determine immigration policy through the use of formal legislative power and the exercise of “de facto delegated” powers to calibrate various forms of enforcement. (Note that there is a bit of fudging in their account here: It’s hard to tell whether the second principal is the president or “the Executive” writ larger. I assume they mean the elected head and political appointees at the apex of an administration). This model, they argue, has epistemic and democratic benefits because it is “highly responsive to partisan and popular ideologies” [208]. 

The missing piece here is a connection between this conclusion and the book’s powerful descriptive component. A lesson of Cox and Rodríguez’s detailed history is that the power of both Congress and also the presidency in respect to immigration policy is asymmetrical. As the book documents in considerable detail, Congress has repeatedly tried to impress granular qualifications—both pro- and anti-migration—upon the executive, only to have the president shrug them off.  Just one of their fascinating examples involves President Reagan in 1986 extending discretionary relief beyond Congress’s desired scope via a “family fairness” program. [126] But while its granular interventions founder, Congress has been influential when it exercises the appropriations power. The “massive appropriations of funds to enforcement programs and agencies” that Cox and Rodríguez document, have worked as necessary infrastructure for the expanding grasp of that bureaucracy [99-100]. I suspect that levels of funding support are much easier to increase than decrease too.   This combination of granular impotency with the wholesale ability to empower, but not step down, enforcement, gives Congress a lopsided form of information: It can get tough but can’t get its toughs to back down. The asymmetry on the presidency side is more subtle. Cox and Rodríguez smartly observe that President Obama had more difficult than President Trump in bending enforcement policy to his preferences because of “agents’ ideological and professional commitments.” [185]. The price of immigration policy change by Democratic White Houses is likely, for this reason, to be systematically higher than that for Republican ones—at least given the current constellation of policy preferences.

 The two principals in immigration law, then, both come to battle with the same hand tied behind their back. Both can press anti-migration policies at lower cost than pro-migration policies. But this structural asymmetry—which, I emphasize, comes from Cox and Rodríguez’s own descriptive account—is simply missing from their evaluation of the “two-principals model of decision-making.” In my view, this is a serious gap in some tension particularly with their democracy-based justificatory argument.

The second missing piece from their analysis relates to their defense of “centralized, politically supervised enforcement policy” through the use of “general rules” that guide street-level discretion [223-24]. This is, of course, a brave position for two professedly left-liberal scholars to be making during the Trump era. Yet Cox and Rodríguez quite rightly resist the idea that optimal institutional structures should be derived on the basis of contingent, and perhaps transient, configurations of partisan influence.

To read Cox and Rodríguez’s argument, though, one would think there are only two possible institutional design choices: Centralize, or allow line agents to have at it freely. But are these really the only options on the menu?  There is a richer repertoire, as Cox and Rodríguez likely know, of institutional arrangements to address problems of agency slack and policy drift. Most obviously, agency independence (which can be fostered in different ways) can be employed to pursue policy ends that require a certain level of buffering from immediate partisan preferences. Monetary policy is the obvious, if imperfect, example. In the policing context, where there is an analogous constraint arising from “agents’ ideological and professional commitments,” there has been a lively discussion of the options for eliciting preferred policies. The point is not to suggest that any given option considered in the policing or the monetary context is necessarily a good fit.  The point is rather that Cox and Rodríguez’s binary juxtaposition between presidential centralization and unfettered dispersion to street-level discretion is uncomplete. Without a more serious analysis of the actual options within that range, the normative conclusion that centralization is desirable doesn’t convince. I am not sure what a more extensive analysis of the range of institutional design options would yield—I expect that reasonable minds could disagree—but I am not at all persuaded that centralization is obviously or necessarily an optimal choice.

The final missing piece from “The President and Immigration Law”  concerns the constraining effect of constitutional rights against discrimination on racial, religious, or ideological grounds. On Cox and Rodríguez’s account, the “conventional wisdom that constitutional review does not apply to the regulation of immigration” is incorrect [233]. Instead, they argue, at least until 2018 and Trump v Hawaii, “ordinary constitutional law” entailed the rejection of the relevant constitutional claims.  Hence, they assert, constitutional antidiscrimination rule apply with reasonable force in the immigration context.

I share Cox and Rodríguez’s normative priors here, but I think they are missing important pieces of the law. (Surprisingly, I should add; they are generally attentive to detail). I am not sure that the 1972 decision in Kleindeinst v. Mandel, upholding an exclusion of a Belgian Marxist invited to speak at Stanford University on ideological grounds, can be squared quite so easily with narrative. On my reading, Mandel is much harder to reconcile with contemporaneous First Amendment law than the cases they cite. I also wonder whether the Court’s extension of gender equality norms to the immigration context fits their picture. It was not until 2017—more than two decades after United States v. Virginia—that these were extended to immigration law by the Court. This is quite a while to wait. The force of this application, however, was undermined by the Court’s decision in Santos-Morales v. Sessions to ‘level down’ the law by withholding favorable treatment from those disadvantaged by the discriminatory provision.  It seems reasonable to anticipate that this remedial disposition saps the incentive of future litigants to make gender equality challenges to other elements of immigration law. Further, the otherwise general rule against national origin discrimination appears to have no application in the immigration context. Given that national origin can often be used as a proxy for either race and religion, the absence of a rule against it in the immigration context will predictably allow leakage of formally impermissible motives into that sphere.

This last missing piece interacts with the first two pieces. If both principals are asymmetrically oriented toward greater enforcement, and if centralization is the only institutional design option on the table, then presumably there should some thought given to how to buffer enforcement and policy against irrational and invidious actions. If the Constitution as enforced in the federal courts fails to do this—my reading of the historical record suggests as much—then an important consideration in institutional design should be how to insulate immigration policy and policy from “partisan and popular ideologies” that are anathema to moral norms of equality and decency. Cox and Rodríguez’s reliance on the force of “ordinary constitutional law” to this end seems to me quite mistaken.

I found a great deal to admire in “The President and Immigration Law.” In light of the pieces missing from Cox and Rodríguez’s account, however, I am hard pressed to conclude that they have identified an optimal—or perhaps even a minimally decent—institutional structure for immigration law and policy. Yet given the persistent recurrence of xenophobic and racist sentiment in the American polity supplies a reason for thinking even this minimal goal remains out of our reach.