Wednesday, January 20, 2016


Professor Rodríguez’s YLJ Article Analyzes Immigration Executive Action

On January 19, 2016, the United States Supreme Court agreed to hear a legal challenge to President Obama’s overhaul of the nation’s immigration rules. The decision to grant cert in the case comes 14 months after the President announced his intention to dramatically reshape immigration law through administrative channels. Since then, federal courts have blocked implementation of the programs after legal challenges were brought by Texas and 25 other states. With the fate of the case now in the hands of the High Court, the issue has the potential to be the most significant ruling of the term.

The legal issues surrounding President Obama’s executive actions were explored in-depth recently in a Yale Law Journal article written by Professors Cristina M. Rodríguez of Yale Law School and Adam B. Cox of NYU School of Law. The article is titled “The President and Immigration Law Redux.”

“These events have drawn renewed attention to the President’s power to shape immigration law,” write Rodríguez and Cox. “They also have reignited a longstanding controversy about whether constitutional limits exist on a central source of executive authority: the power to enforce the law.”

The article makes two central claims, the first of which argues that it is “futile” for challengers of the President’s actions to attempt to constrain the enforcement power by tying it to Congressional enforcement priorities.
“Congress has no discernible priorities when it comes to a very wide swath of enforcement activity—a reality especially true for immigration law today,” write the authors.  “The immigration code has evolved over time into a highly reticulated statute through the work of numerous Congresses and political coalitions. The modern structure of immigration law also effectively delegates vast screening authority to the President.”

The article’s second claim argues that the focus should not be on who benefits from enforcement discretion but on how the Executive institutionalizes its discretion.

“The Obama relief initiatives are innovative: they bind the exercise of prosecutorial discretion to a more rule-like decision-making process, constrain the judgments of line-level officials by subjecting them to centralized supervision, and render the exercise of enforcement discretion far more transparent to the public than is customary,” write the authors.

“These efforts to better organize the enforcement bureaucracy ultimately advance core rule-of-law values without undermining deterrence or legal compliance, as some critics have worried.”

Cristina M. Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. Her research interests include constitutional law and theory; immigration law and policy; administrative law and process; language rights and policy; and citizenship theory. In recent years, her work has focused on constitutional structures and institutional design. She has used immigration law and related areas as vehicles through which to explore how the allocation of power (through federalism and the separation of powers) shapes the management and resolution of legal and political conflict.

Adam B. Cox is the Robert A. Kindler Professor of Law at NYU School of Law. He teaches and writes about immigration law, constitutional law, and democracy.