Notice & Comment

Authors’ Response, by Adam Cox and Cristina Rodríguez

*This is the eighth 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.

We are enormously grateful to David Rubenstein and Jill Family for organizing such a stellar group of scholars to engage with our new book, The President and Immigration Law. And we are even more appreciative that this very busy group of people took the time to participate. The collective responses all cut to the core of the matter—how should we grapple with the extraordinary discretionary power the President possesses to shape immigration law in today’s world? In the book, we explain how the President and the Executive Branch came to possess such massive discretionary authority, through more than a century of legal and demographic developments that culminated in a system we call de facto delegation. These developments propelled the creation of an enormous pool of deportable noncitizens—a shadow system comprised of nearly half of non-citizens in the United States—that “has given the President, and the enforcement bureaucracy he supervises, considerable power to shape the system that screens immigrants. Executive officials effectively wield power to decide who belongs in the polity, and on what terms, simply by making the day-to-day judgments involved in enforcing the law.” (p. 112)

We think it fair to say that the essays in the symposium either accept or share our explanations of the origins and extent of the current state of affairs but offer three distinct ways to assess its implications. Zachary Price is the most critical of our analytical and normative conclusions and denies discretion’s legitimate existence. Eisha Jain, Shalini Bhargava Ray, and, to some extent, Dan Farber and Ilya Somin, call for the discipline of discretion, diverging in various respects from the strategies we propose to do the same in the book. They offer alternate paths for managing de facto delegation consistent with our shared ethos of restraining coercive power and protecting immigrants from arbitrary and even unjust treatment. And Jessica Bulman-Pozen, as well as Farber and Somin, prod us to consider shrinking the domain of enforcement altogether by reimagining the regulatory scheme—a project we begin in our epilogue but that these authors call for pushing in novel directions. We consider each strategy in turn, highlighting both where we differ but also how much we have to learn from these ways of thinking.

Denying Discretion

When there is an enormous gap between the law on the books and the law on the ground—in our case, a mismatch between the size of the population the law makes deportable and the state’s capacity to deport—the question becomes whether executive branch officials can lawfully use their enforcement discretion to make policy. One of our central arguments in the book is that this sort of policymaking is as lawful as it is inevitable. We thus embrace the myriad ways in which the Executive Branch has engaged in bureaucratic innovation to advance its own policy objectives in the course of enforcing the law.

In sharp contrast, Zachary Price sees policymaking-through-enforcement as dangerously abetting presidential unilaterialism; in his evocative formulation, every conflict between the branches becomes a “jump ball that the executive branch will normally win.” Price thus reimagines our separation of powers system in an effort to squeeze out the policymaking discretion wielded by prosecutors. He re-casts them more as functionaries than as independent political agents exercising an important discretionary function in our democracy in service of their own political and law enforcement agendas. Thus, while he acknowledges that prosecutors must exercise judgment, he concludes that this discretion may lawfully be exercised only with respect to case-specific contextual factors; it cannot lawfully be wielded to make broad policy judgments about when and against whom the law should be enforced—especially if those policies come in the form of ex-ante judgments that enforcement agents should forbear from enforcing the law against certain categories of violators. He quite rightly connects policies such as DACA with the rise, in cities around the country, of the progressive prosecutor who would use nonenforcement as a policymaking tool.

We share Price’s concern about the weighty power prosecutors wield. But we do not think that we can address concerns about this power by declaring that policymaking-through-enforcement is illegal. We acknowledge that the line between forbearance from and abdication of enforcement may be hard to draw. But to confine enforcement officials to the case-by-case exercise of forbearance, we believe, can produce arbitrariness across like cases and systemic inefficiencies, particularly in contexts like the contemporary immigration one where the size of the enforcement challenge and the need for trade-offs across types of enforcement, is so sizeable. Interestingly, whereas Price regards our two principals model as a threat to the constitutional separation of powers, Bulman-Pozen assimilates it to ordinary administrative law. We, not surprisingly, think it’s somewhere in between—neither a threat to stable and constrained government, nor the product of legislative delegations that can be supervised as such by courts.

As we argue in the book, we believe it vital for political officials, who are much better positioned than field agents to weigh systemic trade-offs, to exercise judgment in enforcement of the law. The progressive prosecutor certainly highlights a potential risk of this structure—that a singular official (often elected) charged with enforcing the law will establish a hierarchy of laws by deciding which to enforce with gusto and which to abandon—a power that enables prosecutors to bring their own conception of justice into the picture. But if we think the laws are deliberately overbroad—a case we make for today’s immigration code—and if we think the social meaning of the law changes over time, then this introduction of politics into enforcement prioritization should not be objectionable, even if it means the metes and bounds of what is de facto lawful changes as politics change.

Disciplining Discretion

Our claim here and in the book that political officials ought to exert their authority to shape enforcement policy signals that we conceptualize the shadow immigration system first and foremost a management challenge. A number of the symposium essays join us in this objective by defining different ways we might discipline the exercise of discretion to advance rule-of-law values and political accountability. Farber, Bhargava Ray, Jain, and Somin all highlight the different forms such discipline might take, and the fact that there can be such lively debate about the right techniques suggests to us that this medium-term strategy is vital and necessary. In the book we emphasize that it would be irresponsible not to develop such a strategy, given the deep roots of the enforcement system and the structural and political forces that lead Congress to continually expand it.

Discipline might come through political supervision. DACA, we argue in the book, is best understood in this way. Bhargava Ray would go even further—arguing not just that supervision is lawful and desirable, but also that it is legally required. Her vision of a constitutional duty of officials—up to and including the President—to supervise enforcement would have rendered the Trump administration’s un-prioritization of immigration enforcement suspect because of its failure to do the hard work of formulating an actual policy.

Supervision has its limits, of course. And Jain offers reasons to be skeptical that such supervision will be effective, especially when local law enforcement officials—actors outside the federal government—are integrated into the enforcement bureaucracy, a phenomenon we show at length in the book cannot be fully escaped given the present structure of immigration law.  Whether programs like Secure Communities can capitalize on local law enforcement resources and information while still ensuring that federal priorities prevail is an important empirical question about which many immigration scholars disagree. But Jain’s larger point is clearly right: if supervision is inadequate, it must be complemented by institutional re-designs combined with substantive changes to the law, such as cutting out local police from the immigration enforcement system and winnowing the number of criminal offenses that constitute grounds for removal, or shifting responsibility for particular programs to agencies better suited to promote their goals—the assignment of DACA to USCIS rather than ICE, for example.

Other mechanisms internal to the Executive Branch can also help discipline the exercise of direction. The greater proceduralization of enforcement policymaking—something Farber suggests, and that we discuss in the latter chapters of the book—is another route. In fact, this is an approach the Biden administration is now publicly considering in its efforts to “fortify” DACA through notice and comment rulemaking. But as Farber, Somin, and Bulman-Pozen all emphasize, the Executive’s enforcement discretion can also be disciplined by involving other branches of government.

Courts, for example, can provide oversight, as Farber and Somin argue. We agree and argue in the book that courts should (and increasingly do) prompt reason giving and demand rationality from the enforcement regime and the political officials engaged in its management. But we think it highly unlikely that courts—particularly the current Supreme Court—will, any time soon, take up Somin’s call to abandon the constitutionally exceptional treatment of immigration policies. Even if courts did adopt a more robust immigrants’ rights jurisprudence, courts would still likely play a secondary and minor role with respect to the enforcement dynamics at the heart of our book—as they do in most of the story we tell—because of the courts’ reluctance to micromanage discretionary judgments.

Congress is fundamentally different, Jessica Bulman-Pozen argues. It can do more than just oversee the exercise of discretion by the Executive; it can actively shape enforcement policy. She therefore presses us to go further in how we think about the role of Congress in reforming immigration policy: “Might Congress’s place in execution be just as significant as the President’s place in lawmaking?”

Throughout the book we do emphasize ways in which Congress has shaped enforcement policy. It has used its appropriations power—indeed profligacy—to help make enforcement policy over time. Congress has also reshaped immigration policy by moving the locus of immigration administration around within the regulatory state. It did this to buttress law enforcement professionalism (moving immigration from the Department of Labor to the Department of Justice); to secure a modicum of independence for agency adjudicators (separating immigration judges from immigration prosecutors in the Homeland Security Act); and to ensure humane and in loco parentis treatment of unaccompanied minors (housing their custody in the Department Health and Human Services). But there is clearly more that could be done. And we agree with Bulman-Pozen that it is a research agenda well worth pursuing to consider in greater detail how Congress might seize a more sizeable role for itself in shaping, overseeing, and perhaps even transforming immigration enforcement.

But in trying to come to terms with the scope and scale of presidential immigration law, an important guiding principle for us has always been that striving for separation of powers “balance” for its own sake is a misguided pursuit. Thus, we do not have a strong view about the extent to which Congress should re-invigorate its role in supervising immigration enforcement policy that is independent of a claim about what the substance of that policy should look like. Take the most radical institutional reform proposal circulating in public debate—the call to abolish ICE. Despite being critical in the book of ICE’s enforcement culture and calling for political control of law enforcement precisely to curb it, we have not argued that Congress should take this institutional step. Unless any re-design is animated by a vision of what immigration enforcement should or should not entail, the pathologies associated with ICE are likely to live on in whatever institution replaces it.  

Shrinking Discretion’s Domain

When we turn to the question of reform in the book, we call for Congress to reimagine our immigration enforcement system by eliminating the shadow system and delegating tools to the Executive to prevent it from re-emerging. In such a world, the logic of enforcement would no longer dominate immigration policymaking because enforcement discretion’s domain would be much smaller.

Ilya Somin challenges our framing of the reform project, arguing that we should be more radical. Our preliminary thinking about reform focuses on the elimination of the shadow immigration system because its emergence was so closely connected to the late-twentieth century rise in policymaking-through-enforcement. But Somin urges us to focus on root causes, the most important of which he sees as the widespread and longstanding acceptance, across the ideological spectrum, of restrictions on free movement. He would attack that pillar of modern immigration policy directly, enshrining in law a default presumption of free movement across borders. Were such a transformation of immigration politics possible it would not just displace but inter the enforcement logic we critique.

We are deeply skeptical that such a political transformation is possible, not least because the power to determine entry is arguably a constitutive feature of the modern nation state. But how even a more modest transformation (like the one we imagine) might come about, in light of recent history and the polarized nature of immigration politics, is an urgent question we do not answer in the book but hope nonetheless will attract attention and scholarly and political energy. On the road to reimagination, Bulman-Pozen calls our attention to a potentially vital technique. Perhaps Congress can itself begin to change the political economy of immigration enforcement. It could send its dollars elsewhere—either to programs with a more social welfarist bent within the immigration system (think refugee resettlement or more humane infrastructure for processing claims on the border), or outside of the immigration control structure altogether. Congress could significantly reduce the footprint of detention with discrete changes to the laws that make it mandatory in certain contexts, returning the system to its pre-1990 size. And Congress could constrain the Executive’s authority to rely on state and local assistance to amplify its capacity.

Perhaps the enduring lesson from the long history we tell in our book is that the everyday work of the branches to manage the immigration system can, at times, produce radical conceptual and institutional change when aligned with compelling political narratives. Our account of the rise of our system of refugee protection in the decades after World War II might serve as a case in point and a cause for optimism. Through bureaucratic innovation, foreign policy politics, and congressional resistance, mobilization, and ratification, a long history of ad hoc policies matured into a comprehensive system of refugee protection. We believe President Obama’s DACA initiative might follow a similar arc. DACA transformed the social status of the Dreamers and gave their presence in the United States a salience that the courts transformed into reliance interests, which helped DACA survive four years of a hostile Trump administration. The political and legal struggle over DACA may yet prod Congress to reimagine the law. Whether this prediction turns out to be correct, more thinking along these lines is urgent and remains the unfinished work of The President and Immigration Law.