Notice & Comment

Principals and Principles in Immigration Law, by Jessica Bulman-Pozen

*This is the third 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 have written a brilliant book—one of big arguments, grand scale, and historical sweep, yet also institutional detail, political acuity, and legal nuance; a book that has as much to teach us about Biden’s nascent administration as about the tenure of his immediate and more distant predecessors. As I add my voice to the chorus of praise, I want to suggest two extensions of the project.

First, if the President is establishing immigration law through enforcement decisions, as Cox and Rodríguez argue, we must also reconsider how Congress exercises its power. Rather than juxtapose a dynamic conception of the presidency with a static conception of the legislature, we need to consider how significant executive policymaking might reshape, rather than simply marginalize, Congress’s policymaking role.

Second, the policymaking of Congress and the President alike is constrained by a paradigm of enforcement—and, with it, exclusion, expulsion, and criminality—that eclipses other values, such as humanitarianism and solidarity. Focusing on competing principals may be less important than focusing on competing principles.

Congress & Immigration Law

One of The President and Immigration Law’s leading arguments is that we have two principals, not one, when it comes to immigration law: by writing an elaborate immigration code, Congress has empowered the President to set policy through discretionary enforcement decisions, and this “enforcement power has served as the functional equivalent of a lawmaking power” [215]. Although Cox and Rodríguez maintain that theirs “is not the conventional wisdom” [221], readers coming to the book from an administrative-law perspective will not be surprised to encounter the President as a co-equal policymaker. Substantial presidential control lies at the heart of many accounts of the administrative state, and work over the past decade has emphasized executive policymaking tools beyond rulemaking, such as enforcement, interagency coordination, and selectively empowering agencies. If the myth of a congressional principal and faithful executive agent has already been largely dispelled, however, Cox and Rodríguez’s textured account of immigration law significantly enriches our understanding of “presidential administration in the enforcement realm” [219].

Where this co-principals account might go further is with the other principal: Congress. Although Cox and Rodríguez compellingly reject a narrow conception of executive power, they hew to a fairly narrow conception of legislative power. Yet the executive-as-lawmaker may also transform how Congress exercises its authority.

Indeed, although this congressional role does not shape the book’s argument, nearly every chapter contains examples of congressional policymaking in response to executive initiative—policymaking that assumes forms other than ex ante drafting of statutes. These include:

1. Appropriating and Overseeing. Congress shapes the execution of the law through a variety of tools, including appropriations, oversight, investigations, and more informal forms of congressional administration. Even substantive amendments to the immigration code may reject or belatedly bless a presidential action [e.g., 126], but appropriations, oversight, and investigations are still more likely to respond to—and reshape—executive decisions. Insofar as presidential lawmaking may turn “government ‘upside down’” (to quote Justice Kennedy [191]), this congressional role in execution is equally unsettling of formalist conceptions—and equally as much a part of our separation of powers landscape.

2. Designing Institutions. Congress is also responsible for the architecture of immigration law: it has created the agencies responsible for implementing immigration law and redesigned these agencies and shifted their responsibilities over time. Notably, Congress has frequently acted after the President first seizes the initiative, by responding to and refining executive reorganizations. After President Roosevelt established the INS through executive order, for instance, Congress changed the agency’s mandate through the mid-twentieth century. And, more than any new substantive standard, Congress’s 2002 creation of the Department of Homeland Security and reconstitution of the INS as ICE, CBP, USCIS and other agencies has profoundly shaped immigration policy.

3. Empowering States and Other Opponents. Congress has also long built states, local governments, and agency employees into immigration law. As Cox and Rodríguez compellingly describe, Presidents have had some success in their efforts “to co-opt, crush, or otherwise control” these potential opponents [135]—but only some. Because these actors rely on grants of authority from Congress, they are well positioned to challenge the President. When Arizona fought with the Obama Administration, California fought with the Trump Administration, and ICE agents sued Janet Napolitano, for example, they all invoked Congress, not inherent authority. To be sure, Cox and Rodríguez reject these actors’ claims, which describe the President as a faithless agent of Congress rather than a legitimate policymaker in her own right; that is a powerful piece of their book’s argument. And yet precisely because these actors have been granted a role by Congress, they are able to implement immigration law differently from the President and to serve as a source of opposition in the realm of execution.

I doubt that Cox and Rodríguez would disagree that Congress critically shapes immigration law through these and other mechanisms—theirs, after all, is a story of two principals, not just a President, and I have chosen examples from their book. But their rich account of presidential administration calls for rethinking the separation of powers more broadly: might Congress’s place in execution be just as significant as the President’s place in lawmaking?

Two Principles

Accounting for congressional shape-shifting may be especially important when it comes to the broader reconceptualization of immigration law Cox and Rodríguez propose in the final pages of their book. They argue that Congress, Presidents, and other actors alike operate within a paradigm of deportation and advocate a new vision grounded in “openness, dynamism, and humanitarianism” [247]. The accompanying institutional conclusion is bracing in a book focused on describing and defending presidential power: “Only Congress can meaningfully shrink the domain of enforcement . . . . Congress must act if we are to eliminate the shadow system as a source of social domination” [243].

Insofar as congressional action is necessary to elevate principles of humanitarianism and solidarity, this reform project may ultimately depend less on statutory rules and more on institutional design, selective empowerment of actors, appropriations and other approaches noted above. Indeed, the book’s discussion of DACA is suggestive. Cox and Rodríguez emphasize centralization: the Morton Memos were discretionary, while DACA moved decisionmaking power from line agents to high level officials, and from field offices to the DC-area [220]. But just as important, DACA shifted authority from ICE to USCIS, an agency assigned by Congress to confer benefits rather than execute deportations. Still more, DACA was widely (if also technically erroneously) understood not as a mere act of prosecutorial discretion but as an affirmative entitlement to legal status and work authorization; it involved the forms and processes of social welfare—applications, review, substantive grants—rather than those of law enforcement [179-80, 212-13].

DACA’s (very partial) reimagining of immigration law in social welfarist rather than enforcement terms suggests the possibilities of elevating principles of humanitarianism and solidarity over principles of expulsion and exclusion. Doing so requires more than new code provisions; it also requires embedding a new understanding of immigration within the administrative state. The touchstone of The President and Immigration Law is prosecution: in proposing analogies, it is the criminal law, the prosecutor, and the tools of law enforcement—rather than other regulatory regimes, their policymakers, and their tools—that Cox and Rodríguez invoke [e.g., 194-95, 200, 236]. Yet as long as the law-enforcement model pervades immigration policy, allocations of power will be of decidedly secondary importance; there will remain an “asymmetrical” tilt toward arrest, detention, and deportation, with their attendant pathologies.

Which is just to say: one book from Cox and Rodríguez isn’t enough. I hope they will bring their formidable minds, deep substantive expertise, and clarity of moral vision to bear on reconstructing immigration law principles in the world of co-principals they have so well illuminated.

Jessica Bulman-Pozen is the Betts Professor of Law at Columbia Law School.

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