Notice & Comment

Symposium Introduction: The President and Immigration Law, by Jill E. Family and David S. Rubenstein

*This is the first post in a series on Adam Cox and Cristina Rodríguez’s book, The President and Immigration Law. For later posts in the series, click here.

This week and next, the Notice and Comment blog is hosting a web symposium on Adam Cox and Cristina Rodríguez’s book, The President and Immigration Law (Oxford 2020).  It has been a pleasure to gather this group of scholars to celebrate and comment on this book on behalf of the ABA Section of Administrative Law and Regulatory Practice. 

Cox and Rodriguez’s book is an outgrowth of their prior collaboration, including The President and Immigration Law, 119 Yale L.J. 458 (2009) and The President and Immigration Law Redux, 125 Yale L.J. 104 (2015). The book offers fresh insights and important refinements to their earlier works. And, by extending the time horizon to include President Trump’s reign as “immigration policymaker-in-chief,” the authors’ descriptive, normative, and prescriptive claims come into sharper relief.    

Descriptively, Cox and Rodríguez provide a rich historical account of how U.S. presidents have shaped immigration law according to the president’s own values and policy preferences for more than 200 years. This historical narrative anchors one of the book’s central claims—namely, that the president and congress are lawmaking “co-principals” over a sprawling shadow immigration system. 

Cox and Rodríguez show that presidential immigration policymaking results not only from express congressional delegations, but also through the rise of the deportation state. By increasingly ramping up the grounds of deportation, Congress “ensured that the law on the books could not possibly be enforced to its full extent on the ground.” [3]  The authors refer to this phenomenon as de facto delegation. DHS’s budget is larger than all other law enforcement agencies combined, and yet in any given year can only deport a very small fraction of the estimated 11 million people living in the U.S. in violation of immigration law. Through strategic use of enforcement levers, presidents can effectively shape immigration policy in line with the president’s economic, humanitarian, cultural, and political worldviews.

Normatively, Cox and Rodríguez cautiously embrace the co-principal model as a legitimate and desirable feature of the immigration system. The authors are highly attuned to how presidents use their policymaking power in vastly different ways and towards different ends. The signature immigration policies of the Obama and Trump administrations crystallize the possibilities and perils of merging law and politics in the White House. Immigration policymaking by executive fiat is not as durable as congressional policymaking and often less transparent. On balance, however, the authors stress the utility and necessity of presidential control over the vast deportation state, especially if the alternative is blunderbuss enforcement. 

Prescriptively, Cox and Rodríguez argue that executive enforcement power can and should be tempered by internal institutional devices, such as top-down guidance documents, as well as “limited but potent forms of judicial oversight of the Executive Branch as a whole.” [3] While still respecting the executive’s broad prosecutorial discretion, the book argues that courts “can and should require the Executive to base its enforcement judgments in reasons and to respect noncitizens’ constitutional rights to be free from arbitrary government action.” [237]. 

In the book’s epilogue, the authors acknowledge and “confront the possibility that the perpetuation of the shadow system, even if well organized, amounts to a failure—that the zone of discretion has grown too large for institutional design strategies and limited judicial intervention to legitimate it.” [239]. To that concern, the authors recognize that “[o]nly Congress can meaningfully shrink the domain of enforcement by addressing the statutory rules that have helped create the shadow system in the first place.” [243]. Moreover, to amplify the value and utility of the co-principal model, Cox and Rodríguez favor legislative reforms that would afford the president more discretionary authority over the nation’s admission policies. Under the right conditions, this structural adjustment could alleviate some of the tension around ex post enforcement policies.

Congressional action in immigration law, however, is hard to achieve. Indeed, both in theory and practice, the two-principals model may frustrate legislative interventions or even justify congressional inaction. If so, millions of immigrants will remain vulnerable, marginalized, and susceptible to exploitation. Additionally, internal agency controls may be inadequate.  The authors acknowledge that the very structure of the co-principal model of immigration lawmaking “can feed cynicism about the legal system, undermining its legitimacy,” and erode public confidence in the rule of law.

Less than 100 days into the Biden administration, these unresolved tensions are yet again surging to a head. On his first day in office, President Biden began taking measures to rescind and rethink the nation’s immigration policies. One of the interim measures called for a 100-day pause of removals of noncitizens that were subject to a final order of removal. Almost immediately, Texas and other states successfully moved to preliminarily enjoin the 100-day moratorium on a nationwide basis. Meanwhile, President Biden is reversing Trump-era guidance documents and abandoning litigation positions asserted by the Trump administration. Critics of the Biden and Trump administrations each blame the other for the failures of immigration policy. 

The President and Immigration Law offers a vital analytic framework, and focal point, for grappling with complex questions about separation of powers, administrative governance, and the future of immigration law. The contributors to this symposium examine Cox and Rodríguez’s work along these themes.

Below is a short teaser of the excellent contributions that will be posted here on a rolling basis over the next week or so.  While each contributor offers unique perspectives, there is one point on which we all agree: The President and Immigration Law is a tremendous contribution to the literature, packed with innumerable insights, and beautifully written.

In his post, Zachary Price pushes back on Cox and Rodríguez’s normative claims.  Foremost, Price worries that embracing the two-principals model marginalizes Congress and dangerously rachets toward ever-increasing presidential power.

Jessica Bulman-Pozen takes the two-principals model on its own terms and draws attention to how presidential lawmaking may dynamically shift or shape congressional action. Focusing on competing principles, she argues, may be more productive than focusing on competing principals.

Shalini Bhargava Ray’s post considers what the two-principals model entails for the Take Care Clause and argues that President Trump abandoned his duty to supervise the immigration bureaucracy. 

Ilya Somin steps back to ask how applying mainstream constitutional norms to immigration law may alleviate the problems of the two-principals reality.  He argues that relieving immigration law of constitutional exceptionalism would help to curb abuses of executive power, and that a more generous immigration selection system would work to narrow executive power. 

Eisha Jain focuses on how “de facto delegation” in the immigration enforcement system connects, in troubling ways, to the criminal justice system.

Daniel Farber argues that the immigration system, as it is currently constituted, is antithetical to the rule of law ideals of predictability, stability, and regularity. Although the judicial role may be limited, he urges courts to take modest steps to reduce the arbitrary nature of the system.

To wrap up the symposium, Cox and Rodríguez will write a responsive post.

We hope you enjoy this symposium.

Jill E. Family is Commonwealth Professor of Law and Government and Director, Law and Government Institute, at Widener Law Commonwealth.  She is also Vice Chair, Section of Administrative Law and Regulatory Practice, American Bar Association.

David S. Rubenstein is James R. Ahrens Chair in Constitutional Law and Director of the Robert J. Dole Center for Law and Government at Washburn University School of Law.

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