Notice & Comment

A Brilliant but Unsettling Vision of Separation of Powers, by Zachary Price

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

Adam Cox and Cristina Rodríguez’s The President and Immigration Law is a remarkable scholarly achievement.  Brimming with both theoretical insight and rich historical detail, it should be required reading not only for immigration-law scholars and practitioners, but also for students of administrative law and separation of powers more generally.  Although there is much to admire and learn from in the book, I will use this brief blog post to raise some questions in three areas:  about Cox and Rodríguez’s model of separation of powers, about their defense of the Obama Administration’s deferred-action initiatives, and finally about the future of enforcement discretion and immigration law.

One of Cox and Rodríguez’s core claims is that immigration law has developed according to what they call a “two principals” model of separation of powers:  rather than the President serving as Congress’s faithful agent, the President has effectively shaped immigration law and policy.  Presidents have done so, they argue, by stretching Congress’s enactments in unexpected ways and in some instances finding ways around existing laws through, for example, exercises of the treaty power or enforcement authority.  Even before our current era of polarized politics, such executive initiatives routinely forced Congress into a reactive posture.  Congress often found itself forced either to ratify policies it never would have enacted on its own, or else to attempt limiting or repudiating authorities the President had already claimed.

This “two principals” model helpfully captures important features of current inter-branch dynamics, and it seems applicable not only to immigration law, but to other areas as well.  For all its power in describing how the branches do interact, however, I am uneasy embracing it as a normative model for how they should relate to each other.

In practice, it seems to me, encouraging presidents to think of themselves as “co-principals” rather than congressional agents would serve mainly to promote executive unilateralism. It is true, of course, that Presidents often succeed in getting their way and that, when they do, their actions often establish precedents that shape legal understandings going forward.  But this dynamic may only illustrate what Justice Scalia called the “adverse possession” problem with relying on practice to shape legal understandings:  because the executive branch has superior capacity to create facts on the ground, relying on past practice to resolve future disputes will tend to expand executive power over time. 

For that reason, arguments from practice should normally seek limiting principles:  legal interpreters should ask what theory of relative executive and congressional authority in a given area can account for entrenched practice while nonetheless imposing principled limits.  The two-principals model effectively goes up a level of generality in conducting this inquiry, making the ongoing inter-branch tug-of-war itself, rather than the limits reflected in past practice, the proper reference point in evaluating disputes.  If embraced as a normative model of separation of powers, the result might be to convert every future legal issue into a jump-ball that the executive branch will normally win.

Debates over the Obama Administration’s deferred-action initiatives illustrate this point.  For Cox and Rodríguez, President Obama’s public announcement of the DACA and DAPA programs to provide two-year or three-year renewable promises of non-deportation to large subsets of the deportable population reflected the proper operation of the two-principles model.  These policies, the authors admit, were “historic” (174) and “transformative” (181).  They were nonetheless lawful, Cox and Rodríguez argue, because they involved an exercise of “de facto delegation.”  By consistently failing to provide adequate resources to fully enforce immigration laws even as levels of migration mounted, Congress implicitly conferred authority on the executive branch to determine the contours of the immigrant population through enforcement discretion.  Thus, on Cox and Rodríguez’s account, Congress effectively invited the sort of action that the Obama Administration took.

It seems to me there is some tension in this account of the deferred-action programs.  To the extent DACA and DAPA were truly innovative, thus reflecting bold action by the President as “co-principal” with Congress, it is hard to see how the programs reflected a tacit legislative conferral of authority.  Regardless, however, the central legal issue with the programs was the way in which they pushed beyond limits reflected in prior practice and other separation-of-powers considerations.  Enforcement discretion had previously been understood mainly as a power to turn a blind eye to some violations so as to focus on others.  The deferred action policies effectively converted it into a power to provide durable prospective relief from the law’s ongoing application.  As Obama’s own Justice Department put it, “the conferral of deferred action does not represent a decision not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien’s continued presence in the United States for a fixed period (subject to revocation at the agency’s discretion).”

This development could have implications far beyond immigration.  At this point, DACA (the deferred-action program benefitting some 750,000 immigrants who entered the United States unlawfully as young children) has been in place for nearly nine years and seems likely to continue.  The Supreme Court, in a legally flawed decision, actually prevented the Trump Administration from undoing it, and President Biden has now directed his Secretary of Homeland Security to “preserve and fortify” the program.  On the other hand, of course, courts immediately enjoined the much broader proposed DAPA program.  But even so, DACA’s implementation and durability provide a high-salience precedent for employing enforcement discretion to actively reshape the law—a power executive officials might seek to employ in other areas as well.

Indeed, looking beyond immigration, this very theory seems to be gaining ground, though in an oddly polarized fashion.  In “blue” states and cities around the country, a wave of “progressive prosecutors” has embraced overt nonenforcement as a policy tool.  The prior equilibrium—in which prosecutors regularly moderated criminal law in application through enforcement discretion, but typically did so case-by-case or through internal policies kept secret from the public—has thus been disrupted at the state and local level, in much the way Cox and Rodríguez advocate for immigration.  At the same time, the Trump Administration made less use of DACA-style nonenforcement than I worried it might, perhaps because DACA was viewed as something of an anti-precedent by administration lawyers.  Whether these polarized dynamics, which I hope to explore in future work, will support such self-restraint at the federal level in the future remains to be seen.

Cox and Rodríguez have provided an invaluable account of how unilateral presidential initiatives in immigration have fared in the past, as well as a helpful effort to theorize how we might understand them to be “scandalous neither as a matter of formal constitutional law, nor as a matter of good government” (192).  Though I remain leery of their vision’s implications, their extraordinary work warrants the attention of everyone interested in these issues.

Zachary Price is a professor of law at UC Hastings Law in San Francisco.