By MING HSU CHEN
Review of The President and Immigration Law, by Adam B. Cox and Cristina M. Rodriguez
New York, NY: Oxford University Press, 2020
Of all the policy areas where a changed presidential administration may matter most, immigration is at the top of the list. Critics and supporters warned President Obama of the perils of relying on executive enforcement to advance his delayed promise of a DREAM Act. He himself doubted the strategy before using it. His premonitions of peril came true during the Trump administration, which harnessed executive power to advance an aggressive enforcement agenda and justified it by pointing out the symmetry of their actions with their predecessor. What lessons do these episodes have for an incoming presidential administration that is seeking, once again, to offer an alternate vision of immigration enforcement?
In what is sure to become the seminal book on the role of the president in US immigration law, Professors Adam Cox and Cristina Rodriguez offer an account of executive power that may come as a surprise to some: they claim presidential policymaking in immigration is the norm and not the exception. The implication is that neither President Obama nor President Trump broke with history in their expansive use of executive power. Their actions were not “scandalous”; they were an “inevitable part of a legal regime and a signal feature of the structure of immigration law” (12).
The proposition is perhaps more surprising to scholars of the presidency generally than to immigration law scholars. Immigration scholars have been contesting the “conventional wisdom” that Congress is the sole or primary decision-maker under the plenary power doctrine for some time. But whether presidential policymaking is normal or surprising, it is an important lens for understanding the prominence of presidential involvement in immigration policymaking over the last 8 years.
Their detailed historical account of presidential policymaking in immigration begins in 1798 with the founding of the American Republic and Congress’ Alien and Sedition Acts, which included the infamous Alien Enemies Act and the less known Alien Friends Act. The subsequent inaction of Congress prompted immigration regulation to shift to other channels, including presidential powers over foreign affairs and the use of treaty-making with other nations as a means of regulating the terms of entry for immigrants (19). Other significant episodes of executive policymaking retold in the book include: the use of the parole power by President Truman and Eisenhower in the inception of refugee policy in the wake of World War II (52), President Johnson’s interventions to help Cubans fleeing Communism during the Cold War (55), and President Carter’s use of temporary parole to even out the treatment of Haitians and Cubans (56-59).
It is against this historical backdrop that Cox and Rodriguez establish a baseline for evaluating contemporary presidential policymaking. In their account, reliance on the chief executive for immigration policy emerges from three features in immigration politics: the growth of the deportation state, growth of immigration bureaucracy, and demographic changes such as an unauthorized immigrant population of 11 million. Their signature examples from the contemporary era are President Obama’s Deferred Action for Childhood Arrivals (DACA) program (162, 219) and President Trump’s Executive Order Protecting the Nation from Foreign Terrorist Entry in to the United States (a.k.a. the Muslim travel ban) (62, 235).
The two policies illustrate different forms of executive power. President Trump’s travel ban stands in for the power that is expressly delegated by Congress; INA 212(f) suspension clause is cited extensively as the source of the president’s authority in Trump v. Hawaii. DACA illustrates de facto power that falls to the president as he exercises discretion over a sweeping immigration statute that makes millions of immigrants eligible for deportation, whether on the basis of insufficient legal documentation or due to the commission of deportable offenses. As the authors note, DACA could have been premised on a continued use of the parole power, even though President Obama chose to rely on this de facto power (181).
The pairing of the historical and contemporary policy episodes builds on the authors’ earlier law review articles that share the same title as the book. In the first article, The President and Immigration Law, they explain how federal immigration authority is distributed between the political branches of Congress and the President. In contrast to the authority that Congress expressly delegates to the President, they make a compelling case that de facto authority empowers the president to engage in screening and discretionary policymaking after-the-fact and not only on the front-end. The emphasis in the law review article is on the novel part of the formulation: de facto authority.
The more conventional alternative of delegated authority is helpfully elaborated in the book. Using the INA 212(f) suspension clause as a key example, Cox and Rodriguez show that delegated authority is heavily relied on in the federal government’s defense and the Supreme Court majority’s defense of the Muslim travel ban. The example sharpens its foil—de facto authority—at the same time that it rounds out the broader theory of presidential authority and the asymmetry between the president’s exclusion authority and admission authority.
In a second law review article, “The President and Immigration Law Redux,” and the book, the authors present more nuance in the core argument. Both of these writings use DACA as a vehicle to explore the capacity of executive power being used to centralize and constrain enforcement discretion. They posit that President Obama operated as “Policymaker in Chief” as he institutionalized discretion via DACA, and that he did so in the service of an integrative ideal for immigration. The argument is similar to the reflections on President Clinton’s administration set forward by then-professor Elena Kagan in her article “Presidential Administration,” and ideas that I and others have written about in the specific context of DACA.
Including President Trump in the book does more than update the DACA case study. It extends the theoretical account of executive power by showing the perils of the “problem of a discretionary nation” that is ripe for abuse (12). The retelling of the Trump administration shows the other side of the coin: an executive exercising authority in a manner that enlarges rather than tames discretion. The Trump administration used its power to aggrandize the already vast powers of exclusion vested in the immigration bureaucracy. Federal courts are still working to limit that exercise of power through a series of decisions evaluating the administrative procedures used to effectuate several policies.
Chapter 3, “The Deportation State,” further develops the consequences of this daunting enforcement system. It begins by noting the probationary nature of legal status that others have written about as “liminality,” “precarity,” or more recently “conditional citizenship.” The vast machinery of an expulsion bureaucracy produces a “shadow system” of law for the large population of immigrants living “outside the law” (112), or who are otherwise vulnerable because of employment, criminality, and border enforcement.
The concept of the shadow system is important and illustrated by the 2017 memos of President Trump’s DHS Secretary John Kelly expanding enforcement and Trump’s ICE Director Thomas Honan’s comment that undocumented immigrants should be afraid in an era of zero tolerance. The insight about shadows echoes empirical findings from socio-legal scholars and sociologists. Hiroshi Motomura’s book Immigration Outside the Law points to enforcement as the lynchpin for understanding modern immigration law. More generally, law and society scholars and sociologists have long studied the gap between the “law on the books” and the “law in action.”
The shadow concept is valuable for Cox and Rodriguez, but it is somewhat disconnected from the historical and doctrinal analysis that are the authors’ strengths. Developing the idea fully would involve direct investigations into the voices of immigrants themselves or at least a more detailed engagement with literature from law and society scholars. But that is another project for another day.
On the book’s own terms, it is refreshing to see a historically-grounded, doctrinally-precise description of issues that have otherwise been overtaken by partisan politics. Scholarly and political opinions abound without establishing the same sound foundation. So it is on the foundation of history and legal analysis that Cox and Rodriguez offer their normative assessment of executive policymaking through the exercise of enforcement discretion. This part of their book details the risks of making policy in the breech and the instabilities that plague all of immigration policymaking. Again, they see this as an enduring feature and not a bug in the system.
The translation of deep scholarly analysis into smart on-the-ground analysis of policy implementation—i.e., how to get things done—is where the authors will make a real practical difference. They are able to interpret the lessons from history for the future of presidential policy. As someone who writes at the intersection of immigration and administrative law, I especially appreciate the authors’ effort to go beyond the contestation of the President versus Congress to delve deeper into the relationship of the president and bureaucracy. The immigration bureaucracy is the arms and legs beneath the executive head. The details of how the bureaucracy implements policy is where the authors’ normative ideals will gain the most traction.
The authors’ distinction between presidential control over agency discretion and centralization of discretion is subtle, but it illustrates the promise and perils of discretion (164). You get the sense from the book that the efforts of the U.S. Citizenship and Immigration Service (USCIS) to centralize discretion using rule-like criteria in DACA is viewed as a success story. Compare the orderly effects of this rule-like approach with the less disciplined application of equitable factors by ICE officers that preceded it (181). Compare as well the promising centralized enforcement of the Obama administration with the perilous style of Trump’s administration in its issuance of the Muslim travel ban and numerous other immigration executive orders, including a recent attempt to limit nonimmigrant admissions during COVID-19 due to economic threat at a time of recovery (now stalled in litigation), the DOJ’s resistance to funding sanctuary cities (now stalled in litigation), and the non-priorities memos that led to widespread ICE raids and deportation of long-time residents with low-level or no criminal offenses (186).
Moving beyond President Obama and Trump, the comparative analysis of different styles of presidential immigration enforcement will be useful to observers looking forward to a Biden administration. Rodriguez is on the transition team for the U.S. Department of Justice, which houses immigration courts and formerly served as Deputy Assistant Attorney General in the Office of Legal Counsel, so she is well-positioned to advance this analysis.
The initial tasks in Biden’s promise to “build back better” are clear. Executive authority can be used to reverse the priorities in immigration enforcement right away. Doing this effectively involves more nuanced assessments of the administrative apparatus of immigration law. On the one hand, reversing many Trump policies will be quick and easy with the continued use of executive authority to regain control of the immigration bureaucracy. But on the other hand, institutionalizing these changes in a centralized mechanism of enforcement will require navigating the nuances of administrative procedure. These are the types of procedures that the USCIS is exploiting in its attempts to circumvent the Supreme Court’s disapproval of the DACA rescission by limiting the length of renewals and declining to take new applications, or that the U.S. Department of Justice is using to short circuit due process in immigration courts, and the policy manuals ICE and CBP are deploying to close the borders to asylum seekers. (Bijal Shah examines some of these nuances in an essay for Balkinization.)
In a Just Security symposium, several policy insiders discuss concrete ways they would tame enforcement excesses. For example, Tom Jawetz from the Center for American Progress (formerly chief counsel on the Immigration subcommittee of the House Judiciary Committee), sees the need to rescind and reformulate past administrative policies. He exhorts the leaders of the bureaucracies that report to a new president to pursue this restorative agenda as aggressively as the prior one was in undoing the norms that preceded it. Presumably these reforms would take place across the immigration bureaucracy—not only in the agencies that reign over detention and deportation, but also in the agency that regulates legal migration and administers DACA and the asylum system. Lucas Guttentag, a former ACLU attorney and chief counsel to the USCIS, would also begin administratively and place the emphasis on efforts to prioritize immigrant admissions, integration, and humane treatment. He writes:
Of particular significance here, none of the Trump-era policies are the result of laws or legislation. Most are not even the product of formal rules or published regulations. Instead, the Trump administration’s measures consist almost exclusively of various types of executive action: nearly fifty presidential orders and hundreds of sub-regulatory administrative and executive initiatives, including policy directives, memos, guidelines, form changes, FAQs, lesson plans, Attorney General legal opinions, and other administrative actions. By my count, the total is nearing 1,000. What is enacted by administrative action can be undone by administrative action.
Going any further to transform immigration policy will require Congress’ cooperation. The full extent of what is possible in a Biden administration depends on political conditions. Those political conditions will determine whether comprehensive immigration reform is possible after nearly a decade of failed attempts, a point made forcefully by Peter Markowitz.
On the content of immigration legislation, the relative influence of the President and Congress on the exclusionary versus the inclusionary aspects of immigration law is not symmetrical due to unevenness in constitutional structure, as Aziz Huq has explained. So it is not up to Biden alone to define what is politically possible. But the parameters of what is theoretically possible is clear from Cox and Rodriguez’s book.
As a whole, Cox and Rodriguez’s exploration of immigration policymaking in the executive branch is as timely as it is enduring. The authors ask about the big picture in the epilogue to their book, as well as in their responses to the Just Security symposium: “what would it take to significantly demote or even eliminate the enforcement logic from immigration policymaking altogether? Do the histories and policies interwoven in these essays give us any reason to believe that such transformation is possible?”
President Obama’s and President Trump’s presidential policymaking in immigration law represent a crest, but not an anomaly in executive power. Lining up the lessons of history and the recent presidencies reveal the ever-present risks of presidential policymaking through enforcement: the “discretionary nation” is a “system ripe for abuse” (12). The authors note that putting the threat to rest will require that we “radically reimagine the future of immigration policymaking in America” (12-13). That is a daunting task, but it is one the authors have presaged by plumbing the lessons of history for the present and future of presidential policymaking in immigration law.
Posted on 14 January 2021
MING HSU CHEN is Associate Professor of Law and Political Science at University of Colorado, and the Faculty-Director of the Immigration and Citizenship Law Program. She is the author of Pursuing Citizenship in the Enforcement Era (Stanford University Press, 2020).
