Notice & Comment

Supervision, Line-Drawing, and Faithful Execution, by Shalini Bhargava Ray

*This is the fourth 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.

Long before President Obama announced Deferred Action for Childhood Arrivals (DACA) to shield hundreds of thousands of young immigrants from deportation, Adam Cox and Cristina Rodríguez were developing a theory about the President’s policymaking role in immigration law. They crystallized key elements of the theory in subsequent work, and their new book offers a comprehensive account of the President’s role in immigration law in historical context. Central to this account is the “two-principals” model. Instead of casting Congress as the lawmaking principal and the President as Congress’s law-executing agent, Cox and Rodríguez offer a new model of presidential power that openly acknowledges the President’s substantial policymaking discretion as fundamental rather than aberrational.

As Cox and Rodríguez chronicle, the debates over the President’s proper role in immigration law transcend particular administrations. Critics accused President Obama of conducting an “imperial presidency,” and scholars argued that he violated his duty of faithful execution by attempting to shield a large number of deportable immigrants through Deferred Action for Parents of Americans (DAPA), the stalled counterpart to DACA. Other scholars observed that President Obama had deported record numbers of immigrants and that deferred action has been a part of immigration law for decades. Similarly, the Trump Administration characterized its indiscriminate approach as faithful execution, whereas scholars (myself included) have critiqued the Trump Administration’s immigration policies as a violation of that duty.

I’m interested in what we can learn about faithful execution under the two-principals model through analysis of recent shifts in immigration enforcement policy. Article II of the Constitution requires the President to “take Care that the Laws be faithfully executed.” Scholars of presidential power recognize the Take Care Clause as a source of power as well as a limiting duty, but they often disagree as to the extent to which it functions as one or the other. Although faithful execution has often meant fidelity to congressional mandates, the absence of a traditional principal-agent relationship upends this conception of faithfulness in immigration law.

Cox and Rodríguez argue that faithfulness under the two-principals model cannot be measured by fidelity to congressional commands. Indeed, they eviscerate the argument for divining enforcement priorities from the complex, sometimes contradictory Immigration and Nationality Act. But with the President freed up to shape what they call “first order behavioral norms,” what guides or constrains executive discretion? To what or whom is the President to be faithful? Faithfulness in their view appears to mean something like fidelity to rule of law values rather than a particular manifestation of enforcement discretion. Indeed, Cox and Rodríguez expressly reject constitutionalizing enforcement discretion.

I agree fully that the Take Care Clause does not preclude centralized enforcement discretion, but not because I’m reluctant to constitutionalize the structure of enforcement discretion. Instead, I think the Take Care Clause cuts the other way, at least in general terms. And with the Supreme Court showing interest in the Take Care Clause in immigration law, scholars and advocates should embrace the opportunity to articulate its possible boundaries. The Trump Administration’s radical devolution of enforcement discretion, specifically, calls for analysis of presidential power and duty in expressly constitutional terms.

At every turn, the Trump Administration denied the relevance of qualitative distinctions among deportable immigrants and resisted the logic of enforcement priorities, eliminating temporarily exempt classes and making everyone a priority. When every deportable immigrant is a priority, and there are over 11 million of them, line officers end up deciding on their own whom to pursue. Unsurprisingly, this decentralized approach produced wide variations across field offices and led to pursuit of so-called low-hanging fruit. Stories abound of immigrants being apprehended at routine check-ins with ICE or while attending an interview for possible immigration benefits. Further, this approach invites bias.

All this amounts to more than bad policy. It fundamentally disavows the presidential duty to make difficult decisions about national immigration policy. In Judulang v. Holder,the Supreme Court held that the immigration bureaucracy must have reasons behind its actions that relate to the noncitizens’ “fitness to reside” in the country and the overall purposes of the immigration system. Although the Court did not ground its understanding of the purposes of the immigration system in a specific authority, a variety of sources suggest themes relating to family unity, public safety, national security, and economic welfare. Moreover, by suggesting that some deportable immigrants are more fit to reside in the country than others, the Court recognized qualitative differences among deportable immigrants and the immigration bureaucracy’s duty to make those assessments in the absence of statutory guidance. By simply not caring who was apprehended, however, the Trump Administration ignored the hard work of drawing these inevitable distinctions and further discouraged subordinates from doing so. 

Cox and Rodríguez call careful attention to the structural trade-offs in the choice between rules and standards, centralized and decentralized discretion. But a President faces substantive trade-offs as well. Pursuing recent entrants might mean less capacity for pursuing long-term residents with criminal convictions, for example. In delegating this fundamental line-drawing duty to the lowest levels of the bureaucracy, I would argue, President Trump abdicated his responsibility to supervise the immigration bureaucracy. This is not to deny the important role of case-specific judgments by line officers, but rather, to admit that line officers are not policymakers. The President not only has the power to make policy, but the duty to do so thoughtfully, and with reference to the purposes of the immigration system and substantive criteria regarding deportable immigrants’ fitness to remain in the country.

As the Biden Administration pursues a new direction in immigration policy, debates over enforcement discretion and faithful execution will likely continue. For example, a district court judge recently thwarted President Biden’s attempt to implement a 100-day moratorium on all deportations, and although the district court judge did not address it, plaintiffs’ Take Care Clause claim loomed. The years ahead may offer an opportunity to clarify the President’s duty to supervise the immigration bureaucracy and the meaning of faithful execution in immigration law. Cox and Rodríguez’s book offers an indispensable starting point.

Shalini Bhargava Ray is a professor of law at the University of Alabama Law School.

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