Friday, December 04, 2020

Investigating a Unitary Executive Model of Immigration

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

Bijal Shah
In The President and Immigration Law, Professors Adam B. Cox and Cristina M. Rodríguez offer a comprehensive and expert account of the President’s power to control the implementation of immigration law.  To do so, they present a careful exposition of the dynamic relationship between the political branches that both sheds light on the immigration apparatus and has broader implications for structural constitutionalism and administrative law.  For this reason, their book is an important contribution not only to the immigration canon, but to constitutional and administrative law literature as well. 
Cox and Rodríguez’s tour de force argues that the President has sweeping immigration power, beyond the explicit authority granted to him by Congress to exclude and parole noncitizens in sweeping terms.  More specifically, the authors claim that by virtue of the discretion accorded the immigration bureaucracy, the President has substantial, overarching control over immigration enforcement too.  Further, they assert that this de facto delegation to the President is rendered legitimate by virtue of his constitutional authority.  This argument is supported as a general matter by unitary executive theory, which insists that the President has the constitutional authority to exercise all of the policymaking and decisionmaking discretion delegated to administrative agencies.  In contrast, those with a more moderate view of presidentialism argue that it is unconstitutional for the President to “step into the shoes” of agency officials and exercise discretion in their place.
The provocative implication of the authors’ argument is that any exercise of discretion by the immigration bureaucracy is subject to highly-centralized control by the President, as opposed to merely his direction.  In addition, the authors argue that tightening the reins can promote a more temperate regime of immigration enforcement.  In this contribution to a symposium on Cox and Rodríguez’s exceptionally stimulating new work, I offer a caveat to their claim that the immigration bureaucracy is highly subject to presidential control; challenge, to some extent, their contention that a unitary Executive holds promise for advancing moderation in immigration enforcement; and suggest a mitigated approach to presidentialism as a way to further their ideal of sensible immigration enforcement.
As a descriptive matter, the authors identify immigration as a two-principal model, but downplay the role of Congress in enforcement decisions.  Per their explanation, Congress is in charge of the front end, for instance, setting caps and providing a general outline of the immigration scheme, and the Executive is in charge of the back end, which includes enforcing the law to decide who, as a matter of fact, makes it into or is allowed to stay in the United States.  The authors acknowledge the potential for principal-agent difficulties in this regard, particularly in their wonderfully detailed narrative of civil servant resistance to President Obama’s efforts to limit the deportation of certain noncitizens.  However, the authors suggest that these difficulties are due primarily to the idiosyncratic enforcement preferences of the bureaucrats that the President sought to harness. 
But Congress has entrenched its preferences for enforcement in the bureaucracy by design.  The authors are correct that Congress cannot legislate value judgments with specificity for every immigration administrator.  However, Congress founded the immigration system on an ethos of ethnicity-based exclusion as a general matter, and their expansion of the system on this basis has not been stymied by the President in any significant way.  In addition, Congress (in this case, with the full participation of the President) has reorganized the immigration agencies to emphasize the use of law enforcement practices to coerce and exclude noncitizens, as a response to the national fear of terrorism of foreign origin.  I should note here that it could have been otherwise.  Congress could have built a model based on affirmative inclusion (beyond the shadow of this approach that exists in the business immigration system).  Imagine, if you will, a world where Congress mandates a set of floors for immigration, instead of ceilings, and calls on the bureaucracy to actively solicit the inclusion of noncitizens domestically and abroad in the name of multiculturalism.  But I will save this wistful musing, which builds on the book’s inspiring epilogue, for another time. 
Cox and Rodríguez provide a careful chronology of the origins of immigration in race-based exclusion, and its growth on those terms.  In addition, it bears noting that in the mid-twentieth century, the Immigration and Naturalization Service (INS) was moved from the Department of Labor, an agency that makes decisions based on socio-economic principles, to the Department of Justice (DOJ), a law enforcement agency.  Also, as is well-known, the INS was split into several agency subcomponents after the events of Sept. 11, 2001, many of which were packed into a new agency with the primary mandate of protecting “homeland security.” 
In the new Department of Homeland Security (DHS), the affirmative benefits arm of immigration, U.S. Citizenship and Immigration Services (USCIS), was boxed in by a series of subcomponents designed to impact multiple areas of regulation in the pursuit of exclusion, including the Immigration and Customs Enforcement (ICE), Customs and Border Patrol (CBP) and the Transportation Security Administration (TSA).  In addition, USCIS was put under pressure by headquarters DHS to conform their decisions to the new order: maintain national security at all costs. (As an aside, it was interesting to work at USCIS under President Bush II, where a hodgepodge of former INS employees, the humanitarian-minded and new blood lived in fear of making a decision that might lead to the next terrorist attack.  It was not uncommon for asylum applicants from the Middle East to be put “on hold” indefinitely as a result of generalized anxiety alone.)  As a matter of course, the highest levels of immigration adjudication, housed in the Executive Office for Immigration Review, remained in DOJ instead of being accorded their own agency (as might befit impartial and expert administrative decisionmaking).
In other words, the system has been built to exclude, and this predominant legislative mandate colors the decisions of all front-line immigration bureaucrats today.  In addition, it is a result of the amplification of this mandate after 9/11 that civil servants have been trained in a police force mentality and nationalist ideologies with such gusto, and it is this mandate that has exacerbated the harsh treatment of noncitizens, often bordering on the inhumane, in what is ostensibly a regulatory area that engages in civil enforcement only. 
As a prescriptive matter, what does the institutional entrenchment of enforcement mean for the President’s capacity to constrain the bureaucratic practice of severe exclusion in a lasting manner (assuming that future presidents will choose to pursue this goal)?  Barring the passage of comprehensive immigration legislation, Cox and Rodríguez argue, centralized Executive decisionmaking (including as a result of the statutory expansion of the President’s power to admit temporarily) is the best avenue for mitigating the current state of affairs. 
I think that centralization is a start, but it is not enough (and possibly unconstitutional if imposed without taking into account the role of administrators).  And sometimes, centralization may even be counterproductive.  To limit excessive exclusion and deportation by a bureaucracy in which a culture of enforcement exists as a matter of institutional design, a willing President must also 1) dislodge the bureaucratic predilection for exclusion, such that his vision is properly executed and remains stable after he is out of office, and 2) embed in its place a self-sustaining spirit of expert, principled and inclusive decisionmaking.  While I set aside the heavily-debated, normative question of whether the unitary executive model is constitutional, my prescription nonetheless proposes a softer presidentialism in part to reduce the potential for constitutional problems. 
First, the President must both exercise centralized supervision over the exercise of discretion, and carefully integrate his approaches into the workings of the bureaucracy in order to gain purchase.  Both Obama and Trump understood this intuitively, and each applied this tactic to the segment of the immigration bureaucracy most inclined to resist their measures.  These Presidents turned not to parole power (in the case of Obama) and not only to proclamations mandating sweeping changes (in both cases), but also to measures that involved working deep within the bureaucracy in order to root out the bureaucratic ideals and practices they preferred least. 
Regarding Obama, Cox and Rodríguez identify the DACA program as preferable to the Morton Memos because it centralized discretionary decisionmaking.  It did so, they argue, by laying out clear factors for exercising prosecutorial discretion, instead of leaving it to lower-level civil servants to exercise discretion on the basis of the relatively ambiguous criteria outlined in the Memos.  And it is true that the DACA program centralized discretion in this manner. 
But the DACA program had another benefit as compared to other, perhaps even more centralized acts of presidential control over immigration—in particular, the exercise of parole power, which also tends to involve clear criteria constraining the bureaucracy’s ability to deport.  More specifically, the DACA program permeated the exercise of bureaucratic discretion more broadly.  Unlike decisions to parole, which are often implemented by bureaucrats as specialized, isolated programs with a quota and/or sunset, DACA infused a modest norm of deferring deportation into enforcement decisions as a general matter (notwithstanding the popular and media emphasis on the Dreamers).  Accordingly, DACA created a reliance interest in the assurance against deportation that led, at least implicitly, to a Supreme Court decision finding that the Trump Administration’s recission of the program was arbitrary and capricious.
Similarly, our next President must focus on ground-level changes to the exercise of discretion.  In addition, he might consider, as Trump did, getting his hands into the SOPs, policy manuals, procedures, memos, websites, forms and other guidances that influence the work of immigration enforcement on a day-to-day basis.  The new President might also try to shift internal hierarchies and hiring priorities to emphasize the importance of inclusionary values.  By reshaping exclusion-focused agencies’ cultures, structures and decisionmaking more generally, the President could nurture durable improvements to immigration enforcement
Second, the next President must rescue and revive expert analysis and impartial decisionmaking which has been greatly deteriorated under the current administration.  This view counsels against centralization, in some cases.  Indeed, it exhorts Presidents to rein in the impulse to influence immigration adjudication, even if that influence would serve goals of inclusion, and instead to channel power to expert immigration institutions and firm up their insulation from partisan interests.  In this way, portions of the bureaucracy could be empowered to act as a bulwark against future demagogues in the White House (especially given evidence that administrations seeking to maximize exclusion are more likely to interfere in immigration adjudication).  (Moderate unilateralists need not fear, however, as Presidents can advocate for agency independence and still maintain plenty of control over the administrative state.) 
Cox and Rodríguez dismiss the benefits of administrative expertise by arguing that moral decisionmaking is more important in the immigration context, and that the President is better suited to this than the bureaucracy.  I’m not convinced of this.  Beyond Trump’s pandering to xenophobia, even Obama’s efforts in this regard were compromised.  He suffered blowback when he suggested that the humanity of noncitizens deserved some consideration in immigration enforcement.  Even under his regime, the aim of deterring terrorism was deemed worthy of pursuit at any cost.  Instead of trying to act morally in the face of intense political pressures, the President might do better to encourage an institutional culture of discretionary decisionmaking on the basis of nuanced, elastic analyses and application of economic, geo-political and humanitarian principles.  In other words, the President would do well to engage in expertise-forcing (especially if Congress remains unwilling to do so, and the courts are overwhelmed in this arena).  Genuine, measured experts would have to be hired back into the immigration bureaucracy, since many have fled or been forced out.  Once installed, they would be better positioned than political leaders, in many cases, to engage in the data-based exercise of discretion, especially if armed with adequate resources and allowed the protection and freedom to do so regardless of who is in office. 
This approach would allow Presidents to not only pull the civil service back from its current, maximalist approach to enforcement, but to reinforce the bureaucratic components of immigration law that already have some of the structures, unique (albeit currently suppressed) mandates and personnel required to foster inclusion.  USCIS and EOIR, as well as the Departments of State and Health and Human Services, have both dormant and unrealized potential to implement principled immigration policy.  Encouraging decentralization in agencies such as these would complement the next President’s efforts to centralize, constrain and hopefully alter the institutional makeup of agencies/agency subcomponents like ICE, CBP and the like that are otherwise animated by exclusion, fear and norms of law enforcement.  Note that this is not the ex ante version of inclusion that the authors identify and reject based on its indeterminacy.  Rather, this suggestion envisions progress towards inclusion accomplished by the executive branch ex post
Note, finally, that working within the system, as opposed to exercising parole power or issuing executive orders, also allows the President to avoid some of the criticism that accompanies more unembellished unilateral action.  Cox and Rodríguez note the public’s initial disapproval of Obama’s centralized immigration plan.  And as much attention as Trump drew for his hysterical approach to immigration, the popular critique was aimed at his high-level exclusion of swathes of people, as opposed to the ways in which he used political control to magnify the more extreme impulses of immigration enforcement officials and grind down norms of expertise and impartiality.  But I suspect that while the former will be erased by a strike of the new President’s pen, the latter will endure—unless the new administration pays it focused attention.  By working at the ground level, the next President could displace the culture of maximal enforcement and infuse the bureaucracy with revamped and revitalized criteria for more inclusive and expert exercises of discretion.  This could serve both to usher in and to entrench, to some extent, an immigration system that is more fair-minded and less fear-based, despite the constraints of institutional design.
Bijal Shah is Associate Professor of Law at Arizona State University, Sandra Day O’Connor College of Law. You can reach her by e-mail at