Monday, December 07, 2020

The Constraints on Presidential Immigration Policy

Guest Blogger

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

Peter L. Markowitz

           The President and Immigration Law, by Adam Cox and Cristina Rodriguez, is the capstone to their decade-long partnership exploring presidential immigration law.  The book is a unique and critical contribution to the field’s evolving understanding of the dynamics between presidential and congressional control over immigration policy.  Their meticulous inquiry into the historical record of presidential immigration policymaking and the insights they glean from interviews with high level policymakers provide compelling evidence for the conceptual framework they advance; a framework that positions the president and Congress as co-principles in the realm.  Their project is primarily descriptive, in advancing this framework in favor of the dominant misconception of Congress as primary in immigration policymaking and the president as an agent charged with effectuating congressional policy.  However, in conclusion, and at times throughout, the project becomes proscriptive, suggesting how, given their understanding of the dynamics of presidential policymaking, the legal scheme should evolve.  Their proscriptions include some novel and potentially powerful advancement that would make the immigration system both fairer and more functional.  However, as discussed below, critical gaps remain.  The path forward that they propose does not adequately address some of the core defects in the current enforcement regime or provide direct guidance for how, in the face of congressional inaction, a new presidential administration could leverage executive power to begin to address such defects.

              Judicial review of immigration matters has long been influenced by early, flawed, but still controlling pronouncements of Congress’ plenary powers over immigration policy making.  The core contribution of The President and Immigration Law, and of Rodriguez and Cox’s earlier works in the area, is their convincing recitation of both doctrine and history demonstrating that, in many ways the President, more than or at least equally to Congress, stands at the center of immigration policymaking.  The role of the President has been particularly enhanced in recent decades by the “rise of the deportation state” [p. 8], which subjects millions to potential removal for infractions large and small though, even with unprecedented expenditures, only a small fraction will actually face enforcement.  The result, as Rodriguez and Cox explain, is a de facto delegation to the executive branch of vast discretion to select enforcement targets and methods.  A decades-long period of political gridlock has prevented any substantial movement in Congress and, as a result, the executive’s enforcement discretion has become the epicenter of immigration policy and the functional equivalent, in many ways, of law making. 

        This central thesis, however, begs the question of how Presidents can effectively wield their power to implement productive and impactful immigration policies.  Here too, Rodriguez and Cox make important observations about the mechanics of presidential immigration policymaking.  They demonstrate the failings of President Obama’s 2011 experiment with top-down guidance regarding how enforcement discretion should be exercised.  The “Morton Memos” were touted as a mechanism to focus immigration enforcement resources in a more humane and principled manner.  While the merits of the guidelines in those memos remain hotly contested, their impotence, as Rodriguez and Cox lay out, is now generally accepted.  They simply failed to meaningfully influence the actual functioning of the vast enforcement apparatus.  The inability of these memos to impact enforcement practice arose primarily from the interaction of three factors: First, the memos laid out facts to be considered but ultimately no bright lines to constrain field level decision-making; second, the hostility of line level enforcement officers to such constraints; and finally, the lack management and supervision strategies necessary to hold such officers accountable and to ensure robust implementation.   Eventually, the Obama Administration moved toward more robust centralized control to effectuate its immigration policy agenda, exemplified best by the Deferred Action to Childhood Arrival Program (DACA).  In contrast, the maximalist enforcement agenda of President Trump aligned well with the enforcement mindset of line immigration enforcement officers and thus removing, rather than implementing, constraints on discretion was all that was needed to harness the vast power of the enforcement bureaucracy.  Rodriguez and Cox’s analysis of these successes and failures of Presidents Obama and Trump should provide important guidance to future administrations. 

            The President and Immigration Law ends with a call for a “different paradigm” and “radical restructuring” of immigration policymaking.  The authors argue for a “shift away from enforcement-centered immigration policy,” which could be achieved, they argue, by narrowing the grounds of removal and reintroducing statutes of limitations to removal to “drastically decrease the number of people who live under the perpetual threat of enforcement.”  In addition, in what is perhaps their greatest innovation, they argue for greater de jure delegation of discretion to the President over the legalization of undocumented immigrants and the admission of future immigrants.

            Allowing presidents greater control and discretion to welcome immigrants while constraining their authority to deport is a sound model in an arena where the wisest acts of grace can be politically costly and where detrimental maximalist enforcement can be misused to fan the flames of racism and xenophobia for cynical political gain.  However, even to the extent such sound policies could find a political path through Congress, they would inevitably leave many subject to an immigration enforcement apparatus that remains incapable of reliably delivering just and humane outcomes.  To more fully address what ails our immigration enforcement system, as the authors suggest, would take a radical reimagining of our very conception of immigration enforcement.  However, some of the assumptions that underlie their analysis are at odds with that goal.  The authors describe the tools of enforcement as “investigation, arrest, detention, sanction.” [216].  But, as they recognize, mass detention and deportation are relatively recent phenomena and are neither the only nor the most effective ways to enforce immigration law.  A more holistic approach would require a new immigration enforcement paradigm centered around using cooperative enforcement tools to help individuals come into compliance, minimize coercive punitive enforcement, ensuring immigration judges have available broad discretion and scalable penalties short of deportation, ending pre-emptive immigration detention, and ensuring counsel for those facing enforcement and judicial independence for immigration judges. 

            However, in the near-term, neither the reforms I propose above nor those advanced by Rodriguez and Cox are likely to be enacted into law.  Accordingly, the most critical immediate lessons from their insightful analysis relate to the ways the incoming Biden Administration can wield its power to create a more humane and effective immigration system.  First, and foremost, the Biden Administration must take note of the abject failure of the Obama Administration’s attempt to win over recalcitrant Republicans by attempting to implementing an overly punitive enforcement scheme.  That strategy failed to deliver a viable legislative path and instead helped expand the mass detention and deportation apparatus and to reinforce restrictionist narratives that undermine the long-term prospects for reform.  Rodriguez and Cox’s interviews with Obama-era policymakers revealed that good ideas for reform came early in the administration but action came late.  Fear of direct confrontation with a line-level enforcement workforce led the Obama Administration to shy away from more robust bright line constraints on discretion and oversight mechanisms to hold that workforce accountable.  The Biden Administration must not repeat these errors.  Luckily, there is good reason to be hopeful that the incoming Biden Administration is aware of these failings and ready to plot a different path.  The President-Elect has openly acknowledged that the Obama Administration “made a mistake” and “took too long” to begin fixing what ails the nation’s immigration system.  Robustly implementing bold constraints on punitive enforcement measure is the only viable path available for the President-Elect to implement an immigration policy that would restore some level of humanity and functionality to the enforcement system.  It is also the incoming President’s best tool to begin to reshape the national conversation around immigration enforcement in a way that will lay the groundwork for the eventual necessary legislative reform.  

Peter L. Markowitz is Professor of Law at Cardozo School of Law. You can reach him by e-mail at peter.markowitz at

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