Notice & Comment

Agency Power in Immigration, by Bijal Shah

In many ways, the burgeoning study of the bounds of the President’s power lies at the intersection of administrative and immigration law. A related area in which I have a special interest is the exercise of power by officials below the level of the president. In my view, the rich literature on agencies’ activity is worth mining to better understand how agencies affect the exercise of immigration plenary power, and can benefit the broader, relatively nascent exploration of the ways in which agencies alter the executive branch’s authority overall. Relevant questions include: how and why do agency bureaucrats and executive branch leadership (besides the President) alter immigration decision making? What is the impact of these often endogenous changes to administrative structures on the quality of immigration policy? And what do these dynamics tell us about the exercise of administrative discretion as a whole, and its influence on the magnitude and contours of the executive branch’s power?

In a forthcoming short essay, I respond to an argument by former Attorney General Gonzales and an Office of Immigration Litigation attorney advocating more frequent use of the Attorney General’s “referral and review” mechanism. This mechanism confers on the Attorney General a singular power to refer immigration cases to him- or herself and review them autonomously, without required adherence to any procedural standards. In addition, the authors’ remarkably extensive cataloguing of the use of this mechanism shows that it has, in recent years, been motivated by partisan instincts, the desire to influence the outcome of specific litigation or resistance to institutional change. Theoretically, however, its use could also help create more precise, effective and consistent frameworks for the enforcement of immigration law.

In any case, this mechanism allows the Department of Justice to prioritize certain interests—including values reaffirming the primacy of executive authority in immigration law and goals such as efficiency and effectiveness—at the expense of rule of law values such as procedural transparency and due process. This tension has two distinct undercurrents. The first sets in opposition the exceptional power afforded the executive branch in immigration law and core requirements of administrative decision-making processes (including agencies’ immigration adjudications). The second concerns the challenge of balancing objectives underlying the transfer of adjudication from the judicial to the executive branch, which include the maximization of efficiency and expertise, and the individual rights protections that adjudication processes must maintain. Put another way, the Attorney General’s referral and review power highlights conflicts between immigration and administrative law norms, as well as the push and pull of the fundamental aims of administrative adjudication both within and outside of immigration. As such, this mechanism is not only an example of how bureaucratic discretion may influence the government’s implementation of immigration law, but also provides insight into the effect of agencies’ decision-making discretion on the nature of executive branch power in perhaps any substantive administrative law context.

Finally, it is worth noting that this mechanism is similar to the executive order, at very least in that it is easily exercised and vacatable, but does not subject the Attorney General to the legislative pushback and political limitations that keep the President’s actions in check. Further, because the Attorney General’s exercise of this power can simultaneously change immigration policy significantly and fly under the political radar as a result of its very particular application within individual, street-level decisions, it reduces the public’s opportunities to shape the development of immigration law. Thus, this mechanism also serves as a case study for exploration of whether and to what extent agencies have the potential to stymie the political and other accountability processes by which executive branch power is constrained and evolved.

Bijal Shah is an Acting Assistant Professor at the NYU School of Law.

This post is part of a week-long online symposium entitled Is Immigration Law Administrative Law?, which is based primarily on a panel by the same name that was part of the 2016 Annual Meeting of the Association of American Law Schools.

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