Whose Immigration Law Is it?

Guest Blogger

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

Shalev Roisman

Adam Cox and Cristina Rodríguez have written a monumental book in The President and Immigration Law.  The book combines a rich historical account, a descriptive institutional account, and a novel and insightful analytic framework that diagnoses the current state of affairs, normatively assesses it, and plots a way forward.  I could not recommend it more highly. 

Below I provide a brief summary of the book and then ask two questions about whether the book undersells the President in some ways and oversells her in others.

The thrust of the book is geared at countering what Cox and Rodríguez label the “The Conventional Wisdom” in immigration law, which is the notion that Congress—not the President—has primary control over immigration policy. [5] As Cox and Rodríguez show, this conventional story does not accurately describe American immigration policy since the Founding.  To the contrary, for almost the first hundred years of the country, federal immigration policy was shaped primarily by the President using his foreign affairs powers.  And, while Congress has systematically regulated the immigration space since then, the President’s role has remained central. 

How so is one of Cox and Rodríguez’s primary insights. Because half the noncitizen population in the United States—approximately 11 million people—is present unlawfully, perhaps the chief question of immigration policymaking today is not who is here lawfully, but who should be prioritized for removal. [8] The decisions about whom to focus enforcement efforts on thus become as important as what the laws are.  This “shadow system” results from what they call “de facto delegation”—Congress has implicitly delegated broad power over immigration to the President by virtue of this vast enforcement discretion. [105]

Given the breadth of the President’s power, Cox and Rodríguez argue the system is better conceptualized as one with two principals, rather than the standard principal-agent framework thought to govern congressional-executive relations in immigration. [193, 207-10]. They defend the normative desirability of such a two principal framework and argue that the President ought not look to Congress to guide enforcement discretion. Congress, they argue, has not said anything coherent about enforcement priorities and it shouldn’t try to, in any event, because enforcement decisions are better made by the President. [200-01, 207-210].

Cox and Rodríguez conclude with concrete prescriptions, focusing primarily on ending the “shadow system, and replacing the system of de facto delegation with one of de jure delegation that gives the President explicit powers to admit people legally—a fix that would remedy the current imbalance in immigration law, whereby the President has power to remove but not to admit. [244-45]

The summary above is admittedly oversimplified. The book is infallibly nuanced and conscious of costs, even when finding that benefits might outweigh them. And there is much more in the book that I have not mentioned, including a rich descriptive account of internal executive branch bureaucratic dynamics and a discussion of the proper role for courts in ensuring executive branch policy deliberation and rationality. Meanwhile, the epilogue calls for a new “political and moral vision for immigration and the polity,” focusing on “openness, dynamism, and humanitarianism,” that is worth reading in full. (239, 247)

With this necessarily incomplete summary of the book laid out, I’ll pose two questions that lingered with me after reading it.

(1)   Whose Immigration Law Is it?

While so much of the book is framed around reminding us (convincingly) of the President’s power in immigration law, one still gets the sense that it is first and foremost Congress’s domain.  This seems implicit in the “de facto delegation” framing as well as in the prescriptive section calling for more “de jure delegation” to the President.  Both frameworks position Congress in the driver’s seat, with the ability to give power as it chooses to the President.  But, after reading the book, I couldn’t help but wonder if the case for the President’s power over immigration law might not go even further.

To start, it is worth noting a basic tension in the book’s framing of the field as simultaneously one of “de facto delegation” and one with “two principals.”  “Delegation” typically calls to mind a situation where one actor has power that it can lend, or “delegate,” to another. A classic two-principals model, on the other hand, conceives of two actors having power independent of each other.  [fn 1] What I’d like to explore here is whether it would be fruitful to take the classic two principals framing even further in immigration law.

A conventional two principals model will often lead to debates about where one principal’s power ends and the other’s begins. For example, in the constitutional war powers arena, both Congress and the President have independent sources of authority stemming from, inter alia, the Declare War Clause in Article I, the Commander in Chief Clause in Article II, and so on.  The key questions in the field, which is perhaps the preeminent two-principals area in constitutional law [196], are about which branch has power over what.  [fn 2]  

If we run with such a two principals model in immigration law, then, we might start asking questions geared more explicitly at determining what parts of immigration law are Congress’s and which are the President’s. This might shed light on the source of what seem like fairly basic immigration laws today. For example, where precisely does Congress’s power to regulate who can work legally in the United States come from? Textually, it doesn’t flow intuitively from the Naturalization Clause. Perhaps it is grounded in the domestic or foreign commerce clause?  Or perhaps it flows from the “plenary power” doctrine?  But, as Cox and Rodríguez show, alluding to “plenary power” does not resolve the question of whether the power inheres in Congress or the President—it is a doctrine created to resolve vertical, not horizontal, separation of powers questions. [34] Thinking through which powers each principal possesses and where they come from might thus help resolve questions about where fundamental immigration powers reside. (Here it is worth noting that I am an outsider to the immigration law field, so I apologize if this particular question has an obvious answer).

The inquiry into which branch has power over what might seem purely academic, but it is not hard to imagine a future President rediscovering her inherent constitutional authority over immigration law in the face of continued congressional gridlock. As Cox and Rodríguez show, there would be significant historical precedent for this. For example, President Truman used informal diplomatic agreements to admit Mexican workers after congressional authorization lapsed for the Bracero program, which itself began through an informal international agreement by President Roosevelt. [42, 48] And Presidents have used formal Article II treaties to grant even more substantial rights to noncitizens—guaranteeing the same “privileges, immunities, and exemptions in respect to travel or residence” as Americans for Chinese immigrants, and the same “privileges, liberties, and rights,” as Americans for Japanese immigrants. [26, 37].  Such formal treaties would require Senate approval, but one can imagine a President, who is co-partisan with the Senate but not the House, being tempted to use such authority. 

However it might arise, if the President does try to use her inherent constitutional authority over immigration in a way that conflicts with congressional policy, it would be good to know who validly has power over what.

To be clear, I am not suggesting that presidential attempts to use inherent authority in the immigration field will (or ought to) happen. And I confess it still seems intuitive that the federal immigration power is primarily Congress’s. But Cox and Rodríguez’s account does much to destabilize this intuition. The result is that, even after reading the book, I struggled to understand where Congress’s power ends and where the President’s begins.  Although teasing out an exact dividing line is likely impossible, there might nonetheless be value in thinking more about which powers belong to which branch. Doing so might help us better understand where federal immigration power comes from, who is in charge, and who might win the battles over its control going forward.

(2)   Should Congress Have a Role in Enforcement?

While above I questioned whether the President might have an even greater role in immigration law writ large, I wonder if the same could be said of Congress in the realm of enforcement discretion.  Cox and Rodríguez argue against attempts to ground executive enforcement priorities in Congress’s will for two reasons: First, they argue Congress has not actually set forth any coherent views on enforcement priorities in immigration, and, second, that the executive branch is better equipped to make such decisions in any event. [129, 198-200] Although I defer to them on the first point, I’d like to explore the second a bit further.

Cox and Rodríguez defend the notion that the executive branch is better positioned to determine enforcement priorities for a number of reasons relating to the executive’s ability to address changed circumstances or emergencies, as well as to further responsiveness, accountability, and deliberation goals. [207-10] But their primary justification is epistemic. They argue that because of inherent uncertainty in legislation we should “want an Executive Branch with the power to manage a legal regime based on its own judgment forged through its experience overseeing that regime. Indeed, the informational benefits of the Executive typically can be acquired only in a dynamic way, when executive branch officials have authority to make decisions subsequent to congressional policymaking and in the absence of direction from Congress.” [207]  

While I do not doubt the executive’s general epistemic advantages here, it is not clear to me that all enforcement priorities will be heavily dependent on such new information.  For example, it would seem facially legitimate for Congress to pass a statute calling for the executive to prioritize keeping families together, removing undocumented people with serious criminal offenses, and deprioritizing removing people who were brought here through no fault of their own. (These track some of the values the Obama administration derived from Congress to justify its deferred action programs).  Such enforcement priorities seem more value-driven and less sensitive to new information, but nonetheless legitimate.

In short, although enforcement decisions based on changed circumstances, emergencies, or the development of the regulatory regime are likely better made by the executive, there might still be a legitimate role for enforcement priorities based on long-run values that are less sensitive to additional information. If so, Congress may well have a role to play in enforcement discretion.

***

These reactions are preliminary and do not in any way take away from how terrific Cox and Rodríguez’s book is. I learned a great deal from it and was inspired to think much more deeply about immigration law, the President, enforcement discretion, executive branch bureaucracy and governance, how best to utilize judicial review, and much more. Scholars in any of these fields will learn from this book. I hope the reactions above will serve as food for thought going forward, but my primary reaction to the book can be summed up as follows:  You should read it.

[fn 1]: In theory, a two principals model could result from broad delegation from one principal to another. But, for the reasons discussed, I think there might be value in pushing a more classic two principals model focusing on each principal’s independent powers here.

[fn 2]: One could conceive of the modern President’s war powers as resulting from congressional acquiescence and thus perhaps it could be described as resulting from de facto delegation, but that is not, in my view, the dominant paradigm.

Shalev Roisman is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law. You can reach him by e-mail at sroisman at arizona.edu.