Notice & Comment

Recapping the Homeland Security Institute – Part 2, by Nina Hart

On August 21–22, 2014, the American Bar Association hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The previous post focused on several major themes of the Institute.  This week’s post will focus on issues in immigration law, which was the topic of several panels.  These reflections come from the following presentations: America’s Immigration Agenda and Executive Power in Immigration Law.  A copy of the full agenda is here.

Part Two

One topic of interest at the Homeland Security Institute was improving immigration law and practice to enhance national security.  Panelists discussed the politics and policy behind previous and pending immigration reforms and the authority vested with both the legislative and executive branches that may enable such reforms.

Congressional Action

Congress has been active—at least in terms of debate—in the area of immigration law for decades, if not centuries.  Much of the modern immigration system, however, is based on the Immigration & Naturalization Act of 1952 (INA).  The INA has been amended several times as Congress has revisited certain policy questions in an attempt to modernize and improve the system.  For instance, in 1986, Congress shifted its attention to illegal aliens, and passed the Immigration Reform & Control Act (IRCA), which focused on paths to legalization and, for the first time, imposed sanctions on employers who knowingly hired illegal aliens.  In 1990, Congress returned its attention to immigrants who arrived legally, and passed amendments to the INA to address visa petition backlogs and how to better adjudicate family reunification cases. 

Since the 1990s, the two political parties have continued debating these issues, particularly with respect to increased border security measures and how to address the issue of illegal aliens.  Despite the high level and volume of debate, no major legislation has been passed since 1996.  Much of this inaction has less to do with policy divergences, but results from political incentives to take or not take action.  As one panelist pointed out, in 2006, the Senate introduced but did not pass a bill addressing border security and the e-verify system.  At the time, the parties could not reach a consensus on the substantive policies in the bill.  Ten years later, however, the parties have both moved to the center.  They largely agree that the path to legalization should be longer and more resources should be spent on border security.  However, the emotional undertones and political forces at work have prevented congressional action.  In particular, the demographic makeup of individual congressional districts has had a powerful effect on the political incentives of members of Congress with respect to their stances on immigration reform.  For example, there are 24 districts with an Hispanic population of over 25%.  Republicans Poe and Denham represent two of those districts, which, at first, may indicate that they have similar incentives with respect to supporting immigration reform.  However, President Obama won one of those two districts in the last election, which means that these two Republican members of Congress actually have divergent political incentives.  This complicated political backdrop, the panelists concluded, is largely the cause of the ongoing political impasse on immigration reform.

This political impasse is currently playing out with respect to Senate Bill 744 (“SB 744”), which has passed the Senate and is awaiting action in the House.  However, because of the ever-present electoral concerns, which are magnified by the fact that this is an election year, it seems unlikely that any action will be taken before the end of this congressional session.

Executive Action

In view of the active role that Congress has historically played in the immigration arena and the current political situation, one key question arises with respect to the Executive Branch.  How much discretion and “space” do the executive agencies have to shape policy?

At a general level, there is a consensus that the Executive Branch has broad authority to act in the area of immigration law.  However, numerous factors influence agency discretion and these factors may lead to more or less discretion in particular cases.  First, agencies are always limited by what Congress has expressly mandated.  Second, individual actors also influence agency powers in the sense that the people interpreting the statutes may reach conclusions about the mandates that vary over time and possibly with what Congress may have intended.  For example, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Pursuant to this Act, agencies had greater freedom to make rules increasing the grounds for deportation.  The ALJs also interpreted this Act to reduce their ability to grant clemency in deportation cases.  Congress disagreed with this interpretation and subsequently wrote a letter to the agencies to remind them of the many tools, especially prosecutorial discretion, at their disposal to address deportation.  Despite this letter, the agencies continued to believe that their discretion had been reduced and concluded that this was the result of Congress’ action, not the agencies’ inability to properly identify tools giving them discretion.

Third, where agencies believe they possess broad authority, the extent to which they shape policy depends on how they actually deploy the tools at their disposal.  For example, prosecutorial discretion is often the most critical tool in the context of immigration cases.  Rather than deport a particular individual, an agency may grant a temporary reprieve, choose not to bring a particular proceeding or choose not to bring certain charges.  Other statutes have granted similarly broad powers to the Executive to make individual admissions decisions on humanitarian reasons or economic reasons.  For example, under the Deferred Action for Childhood Arrivals Act, the Executive Branch may promise not to deport certain children for specified periods of time.  Additionally, Section 235 of the INA permits the Executive Branch to make asylum determinations and insulates those decisions from judicial review.

In sum, the Executive Branch is empowered to “reform” the immigration system by shaping enforcement priorities and determining how to expend its resources.  As noted, however, executive authority is cabined by legislative mandates.  Thus, if a broader overhaul is to be accomplished, such action must ultimately come from Congress.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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