A President’s Uncertain Relationship With Social Movements

Guest Blogger

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

Robert L. Tsai

Adam Cox and Cristina Rodriguez have written a brave and valuable book. In The President and Immigration, they de-center Congress in America’s system of immigration law and reveal to us a troubling truth many don’t wish to hear: the President sits “atop a massive deportation state” that allows significant leeway to remove whole groups of unwanted migrants from our midst. That makes policies like President Trump’s ban on Muslim travelers and his supercharged efforts to remove unauthorized Hispanic migrants more consistent with the past than representing a clean break from it. Moreover, in a breathtaking transfer of power through “de facto delegation,” a president has been afforded policymaking authority to enforce federal law in a highly discretionary manner—creating a “shadow immigration system.” Collectively, it has meant that presidents can initiate policy and even contradict policies set by Congress, encountering only rare pushback by Congress or the courts. Certainly presidents have grown accustomed to treating the system as theirs alone to shape, whether it’s Obama creating the DACA program and Biden promising to revive it, or Trump’s plan to drastically reduce admissions of refugees.

This is a bracing and realistic portrait of what America’s immigration system has become. Given my own interest in presidentialism, particularly involving FDR and Obama, I applaud the authors’ choice to give presidential leadership pride of place in their theory of immigration law’s development. In clear prose and through sharp analysis, Cox and Rodriguez show us how even when Congress disapproves of presidential adventurism, they have often ratified the policy decisions of past presidents. That raises a tough set of empirical questions. Has legislative action ever constrained a president or has it merely enlarged the menu of legal sources and arguments from which a president may choose to justify the policy to which he is already committed? If, as Cox and Rodriguez strongly suggest, the answer is “no” more often than the answer is “yes,” then what kinds of reforms are worth the investment?   

            I’d like to push on the Cox-Rodriguez story a bit, which I take to be a historical-legal account that is institutionalist and internal. By institutionalist, I mean that the authors are less interested in the specific motivations of particular historical actors and their policy effects and more interested in the bureaucracies that have been established, abolished, or reorganized, the ways that lines of authority between the federal government and the states have shifted, and the sheer number of immigration-related laws and rules that have grown over time.

By internal, I mean that their explanation traces the trajectory of development from the perspective of constitutional actors from within the legal order (presidents, agencies, aides, legislators, judges), rather than from that of actors who stand outside of the formal policymaking and enforcement system, such as grassroots activists, political parties, business groups, or civic organizations. Indeed, Cox and Rodriguez reject certain external explanations for the development of our modern immigration system, such as hyper-partisanship, and don’t grapple with others, such as changes to views on immigration on the part of political parties or unions.

            What might be learn if we widened the lens to encompass other patterns of development? Although the Cox-Rodriguez story focuses on presidential vision and how to implement it, there are other dynamics—some cyclical, some seeming to operate as one-way ratchets—that create opportunities and can give that vision potency. The current regime allows presidents and their allies to engage in what I’ve called the politics of demographic control. Cox and Rodriguez rightly identify a president’s role in pursuing these efforts at shaping the country’s makeup as well as promoting a vision of political community.

When we get to mechanics, though, it’s more than just a story about presidential leadership; it’s also one about how presidents position themselves vis-à-vis other actors to gain or entrench influence. Trump’s ambition to do so much in such a short period of time, despite winning a narrow victory in 2016, had everything to do with electoral advantages enjoyed by the Republican party but was propelled by anti-immigration forces. Other presidents not clearly backed by a consolidated part of the electorate and his party, or well-organized on the issue of immigration, would enjoy less actual policymaking latitude (measured not just formally in terms of precedent but also in terms of how deferential Congress and federal judges can be expected to be).

            The Cox-Rodriguez model favors “political responsiveness” in the making of immigration policy, and the authors point out that the modern presidency has various attributes that make it well equipped for exerting such popular influences. Yet there are different kinds of forces that act on a president. Our constitutional order has shown itself to be increasingly open to capture by not just political parties, but also whole social movements, as Sidney Milkis and Dan Tichenor explore in their terrific new book, Rivalry and Reform. This development of course is a popular work-around the amalgamation of republicanism and liberalism into a form that doesn’t often serve the needs of citizens. It’s rarely the case, however, that a social movement’s policy preferences represent those of the median voter. So the ascendance of presidential lawmaking has also opened the door to a new form of interest-group influence when presidents present themselves in part as movement leaders, as LBJ and Trump both did.

There can also be crucial yet unruly bureaucratic effects that come from a unity between presidents and social movements. Just as the civil rights movement has continued to try to hold or recapture key offices such as the Department of Justice or the Civil Rights Division, so too agencies such as the Department of Homeland Security have become the new sites for social conflict over certain constitutional principles such as federalism, equality, and fairness, as well as cultural values such as belonging and community. But a political order in which social movements are constantly warring with one another for control of the government’s bureaucracies has enormous costs as well as its benefits.

One possible conflict-centered reaction is that the legal order should let everyone duke it out and allow the chips fall where they may, even if that leads to wild swings in federal policy and a less stable sense of citizenship rights and institutional powers. Another, perhaps more technocratic, response is that we should do what we can to harness the beneficial aspects of activism while finding ways to reduce its extremes, so that policymaking by presidents can proceed mostly on the basis of empiricism and efficacy rather than identity and outrage.

Accounting for these external developments may make it harder to be indifferent whether it is an ethno-nationalist movement or pro-equality movement that is pushing for dramatic legal changes, given what a movement can do to (and for) a political order. For someone who worries about the differential impact of ultra-right and illiberal movements in eroding governing values and the relationships among inhabitants, there is much to be concerned about a presidency that can so easily harness such deconstructive forces.

            In related fashion, their theory feels somewhat less moored to familiar constitutional signposts. Few, if any, particular actions by a president would be patently unconstitutional under the Cox-Rodriguez approach, and the two don’t contend that the president-centered system that has emerged violates an originalist understanding of separation of powers or the ideal vision of a well-balanced, mixed constitutional order. For instance, they say that President Obama could have gone farther in using his parole power on behalf of unauthorized migrants and would even be open to expanding a president’s ex ante prerogative to admit non-citizens at the border. While that spirit of general tolerance lends their model great capacity to explain the changes that have occurred, it does leave the reader wondering where the authors believe are the outer boundaries of constitutional permissibility.

            For those of us who believe something transformative happened in 1965 when Congress enacted the Immigration and Naturalization Act as part of the civil rights revolution, the principles of anti-discrimination and family integrity were brought into a new domain. The Trump administration’s efforts to inject religious and racial considerations into admission and removal policies (overtly and surreptitiously), as well as its persistent labors to undermine family reunification as “chain migration” widened inequalities in this domain and attacked these achievements in a fundamental way. But we would want to know more about how Cox and Rodriguez see such moments which were partly generated through presidential leadership and how the principles yielded during these moments might be safeguarded.

When it comes to reforming the existing system, the unceasing drum of realism that beats through the Cox-Rodriguez account may be more compatible with legal tinkering than radical reimagination. The authors themselves are “optimistic” and hope to “shrink the domain of enforcement,” and thereby a president’s discretion, by reducing the number of laws that render someone deportable. They also propose trimming certain emergency powers such as the authority to admit migrants during a crisis. If these legislative fixes could be accomplished, it would really do some good. But we have to imagine that the factors that have led to the dramatic criminalizing of unwanted presence and the legislative choice to give presidents so much responsibility through discretion can be undone or will dissipate on their own.

For my part, I am actually left less hopeful about the efficacy of tinkering after reading The President and Immigration Law. Instead, I find themselves convinced that major reorganization of bureaucracies such as DOJ, DHS, and ICE must be on the table, along with substantive reforms that bring more people living productively into a less precarious legal status.

Perhaps other answers can come from looking further inward, given that presidents are likely to remain at the center of the immigration system for a lot of other reasons besides legislative inertia (just a few: the sheer number of unauthorized migrants in the country, the uncertainty about reforms that lead to citizenship, our international and humanitarian commitment to refugees, the desperate economic and political conditions of so many other countries etc.).

Of course, we might have to change how we think about how such internal measures operate. We’d have to think not just in terms of constraining a president or his allies, but in terms of maximizing the political value of time by making it harder to make enduring transformative changes unilaterally. An ambitious president should not be able to so easily run roughshod over basic principles in a single term. If a president isn’t likely to give up power and Congress doesn’t want it back, then at least part of an executive branch official’s job must be to create more obstacles to future demagogues that will inhabit the office. 

Robert L. Tsai is Professor of Law at Boston University. You can reach him by e-mail at rltsai@bu.edu