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Monday, August 31, 2020
The President and Immigration Law
In her new book, The President and Immigration Law (Oxford University Press, September 2020), Leighton Homer Surbeck Professor of Law Cristina Rodríguez ’00 examines how immigration policy became concentrated in the hands of the president and whether this state of affairs should give us pause.
With co-author Adam B. Cox of NYU School of Law, Rodriguez utilizes archival sources, immigration enforcement data, and personal accounts of former government officials, to show that presidential control is not the product of our partisan political moment, but rather a dynamic a century in the making.
Since the nation’s founding, the authors write, there have been clashes over the authority to regulate immigration. One of the earliest immigration disputes — over the Alien and Sedition Acts — involved whether Congress could authorize the president to deport his enemies. For most of the nineteenth century, U.S. immigration policy resided in the realm of foreign affairs and trade policy and therefore in the president’s domain.
But the conditions for modern presidential immigration law really arose from a series of twentieth developments. According to Rodríguez and Cox, Congress’s creation of a complex immigration code alongside a massive deportation state counterintuitively transferred power to the executive — the branch with the power to decide when and how to enforce the law.
When this enforcement regime collided with the dramatic acceleration of illegal immigration between the 1970s and early 2000s, it left the United States with a shadow immigration system — one in which nearly half of all noncitizens, roughly eleven million people today, are present in violation of the law. As the pool of deportable non-citizens became vast, Congress’s detailed code became less central to determining who would be allowed to remain in the country. Instead, the executive’s enforcement choices came to define immigration policy. As a result of his central and very ordinary duty to enforce the law, the president can “inject his own vision for immigration into the operation of the system and the meaning of the law,” they write.
Critics across the ideological spectrum have condemned recent assertions of this power as usurpations of Congress’s authority to control immigration law. But the authors argue that these claims fail to appreciate the way the nation’s immigration system has actually developed into an enforcement-dependent regime over time. Of course, even if dramatic and presidentially-driven enforcement policies do not trench upon congressional prerogatives, such a system is still ripe for abuse, say Rodríguez and Cox, with the threat of coercion serving as a central and powerful policy tool.
The authors consider ways of controlling the enforcement power under the status quo. But they also call for reforms that would eliminate the shadow system and diminish the role of enforcement in the system altogether. The role of the president could then be reconfigured so that other tools of the executive branch — flexible policymaking capacity and the ability to respond quickly to changing realities — might help produce a humane and dynamic immigration policy.
These larger objectives will require congressional action and a political consensus that has eluded reformers for a generation. But for Rodríguez and Cox, this reimagined system should always be in our sights.