The President and Immigration Law

Abstract

Congress's plenary power to regulate immigration sharply limits the judiciary's involvement in immigration regulation. Since the plenary power doctrine was first formulated, the Supreme Court has emphasized that immigration represents an issue best left to the political branches. The resulting extended focus by scholars on the implications of this distribution of power between courts and the political branches has obscured a second important separation-of-powers issue: the question of how immigration authority is distributed between the political branches themselves. The Court's immigration jurisprudence has shed little light on this question, often treating the political branches as something of a singular entity. Surprisingly little scholarly commentary has addressed the inter-relationship between the two branches or attempted to discern whether consistent power-sharing patterns have emerged over time.In this Article, we explore how the allocation of power between the political branches to screen immigrants has been understood both as a matter of constitutional history and as a matter of actual practice, with a view to better understanding the structure of American immigration law. We present a long-overlooked constitutional history according to which the executive has claimed inherent authority to screen and admit immigrants, But we demonstrate how this use of authority has been slowly domesticated by the rise of the administrative state and its associated jurisprudence, with the consequence that most executive policymaking in the immigration arena proceeds today through delegated authority. But this delegation has not always operated in obvious ways. We show that the explosion of a detailed, rule-bound immigration code has had the counterintuitive consequence of delegating tremendous authority to the President to decide the most basic questions about which types of noncitizens, and how many, should reside in the United States. But this delegation has been asymmetric: the President has considerable authority to screen immigrants at the back end of the system through its enforcement decisions, but little control over screening at the front end, before immigrants enter the United States. We argue that this asymmetric delegation has pathological consequences in certain circumstances, and we suggest two possible solutions: either formally delegating to the President the power to adjust the quotas and admissions criteria at the heart of immigration law, or seriously restricting the prosecutorial discretion of the President in the immigration arena.

The Use of Executive Orders and Proclamations to Create Immigration Policy: Trump in Historical Perspective

“…Importantly, these uses have often been innovative, accomplishing objectives Congress almost certainly did not intend and expanding or repurposing Congress's original design" (Cox and Rodriguez 2015, 116). Cox and Rodriguez (2009) examined the use of executive power to create the Bracero program and during the Caribbean refugee crises. Specific EOs, such as Trump's "travel ban," have received attention from legal scholars (Ayoub and Beydoun 2016;Margulies 2018;Wadhia 2018Wadhia , 2019, while policy and advocacy organizations have summarized and analyzed them (Pierce, Bolter, and Selee 2018;Pierce 2019).…”

“…With respect to immigration, there is a small but rich legal literature on the use of executive authority to create immigration policy (Cox and Rodriguez 2009, 2015; Family 2016; Johnson 2017). While Congress has “largely retained a monopoly over these formal legal criteria” governing admission and deportation of noncitizens, Congress has also delegated broad authority to the executive branch regarding the specifics of how the laws are implemented (Cox and Rodriguez 2009, 511).…”

“…With respect to immigration, there is a small but rich legal literature on the use of executive authority to create immigration policy (Cox and Rodriguez 2009, 2015; Family 2016; Johnson 2017). While Congress has “largely retained a monopoly over these formal legal criteria” governing admission and deportation of noncitizens, Congress has also delegated broad authority to the executive branch regarding the specifics of how the laws are implemented (Cox and Rodriguez 2009, 511). At the “front end” of the migration system, the executive can exercise its power regarding the entry of noncitizens by using a number of executive tools, including the parole power, 1 the inherent executive authority over foreign affairs, and Section 212(f) of the Immigration and Nationality Act.…”

“…Thus, on the front end and back end, “The President has used powers expressly delegated to him by Congress to advance his own immigration agenda. Importantly, these uses have often been innovative, accomplishing objectives Congress almost certainly did not intend and expanding or repurposing Congress’s original design” (Cox and Rodriguez 2015, 116).…”

Denying Citizenship: Immigration Enforcement and Citizenship Rights in the United States

“…Discretion has played an important role in the development and implementation of immigration enforcement policy in the United States (Cox & Rodríguez, 2015;Wadhia, 2015).…”