(Editor’s Note: This article introduces a Just Security series in conversation with the new book, The President and Immigration Law, by Cristina Rodríguez and Adam Cox. The series will bring together expert voices on immigration policy and reform to reflect on the book and to chart a path toward a more sustainable and balanced immigration system.)
A stunning new report from the Department of Justice Inspector General reveals, in graphic detail, the Trump administration’s deliberate policy of separating immigrant children from their parents at the border. “We need to take away children,” former Attorney General Jeff Sessions reportedly told federal prosecutors who initially recoiled in response to Session’s 2018 order to prosecute all immigrants crossing the border unlawfully. At the highest levels of government, officials understood that the zero-tolerance prosecution policy would result in separating even breastfeeding infants from their mothers. They pursued the policy despite internal resistance, working to implement President Donald Trump’s wishes.
The family separation policy was among the most viscerally unsettling executive actions through which the Trump administration has radically transformed American immigration policy. The president himself repeatedly has injected xenophobic and racist invective into the public debate, and he and his high-level officials have methodically exploited legal and bureaucratic authorities to advance a punitive and restrictive vision of immigration and the American nation.
Countering the enforcement maximalism of the Trump years in pursuit of a more humane and just immigration system is one of the most urgent reform agendas of our present moment. The authors in this series—former government officials, academics, legislative staffers, and activist litigators—take up this project and offer their briefs for a different and better future.
Contributors suggest a variety of reforms and new visions for immigration, from paths toward rationalizing portions of the deportation state (Margo Schlanger on immigration detention) to reimagining what a border community might mean without the current overemphasis on enforcement (Josiah Heyman). Others question our definition of “enforcement,” opening a discussion of what it would mean to “enforce” the law in a cooperative sense (Tom Jawetz); or point out that enforcement (however it is defined) is but one aspect of the power over immigration that has accumulated in the executive, which exercises quasi-judicial and quasi-legislative powers as well (Nicholas Espiritu). Yet other contributors expand upon the possibilities for robust judicial review within the current executive-driven system, and the options that a reform-minded executive might consider to constrain its own power (Lucas Guttentag). Through this series, we hope to spark continued conversation around the best ways to move forward from the current, unsustainable system of immigration regulation.
The Roots of Presidential Primacy in Immigration Law
In order to develop a meaningful reform agenda, it is essential to understand how our system and the president’s prominent role within it came to be. In our new book, The President and Immigration Law, we explain how presidential immigration law became a pervasive feature of American politics and law. Trump has succeeded in advancing his restrictive vision because of an elaborate system of laws, powers, and bureaucratic structures, a century in the making, that empower the president. It might be tempting to think that his controversial unilateral executive actions, as well as President Barack Obama’s before him, reflect the extreme polarization of our moment—the need and pressure to turn to unilateral action because legislative compromise has become impossible. But as we show, the roots of these controversies extend much deeper than the polarized politics of today. Since America’s founding, Presidents have used their authority and the charisma of their office to shape immigration policy to suit their ends. And during the course of the twentieth century, changes to the basic structure of immigration law effectively made the president our immigration policy-maker-in-chief.
Some of the president’s power comes from exceedingly broad delegations from Congress. Trump has made dramatic use of one of the most sweeping—section 212(f) of the INA—a Cold War relic that gives the president virtually unconstrained power to restrict the entry of non-citizens and classes of non-citizens if he believes the interests of the country require it. Likewise, Trump has been able to reduce to record lows the admission of refugees to the country because the Refugee Act of 1980 expressly gives the president the power to determine the annual number of refugees allowed in.
But presidents, including Trump, have also made great use of interstitial delegations designed to give an otherwise categorical system of admissions and exclusions some play in the joints. In the book, we tell the story of how presidents have used the parole power – which was delegated by Congress to allow for case-by-case admissions in emergent circumstances – to basically invent our post World War-II refugee regime, offering a case study of how bureaucratic governance and presidential leadership can combine to reshape the system and pressure Congress to act, as it did with the enactment of the Refugee Act of 1980.
But the more important source of executive authority, we argue, is the president’s ordinary duty to “take Care that the Laws be faithfully executed.” Because the president sits atop a massive deportation state that has been under construction since the 1920s and has ballooned since 9/11, the president and executive officials have enormous power to shape the lives of immigrants and the systems they must navigate simply through choices involving how to “faithfully execute” the laws.
Presidential Immigration Power Today
Two factors drive the vast scale of presidential power in immigration today. The first is legal: under the immigration code anyone present without authorization is deportable, which means their removal would be a valid act of executing the laws. The second is demographic: between the 1970s and the early 2000s, the U.S. experienced an explosion of illegal immigration, and millions settled here despite lacking legal status.
The president thus helms what we call a massive shadow immigration system. This shadow system sits alongside the legal one, which consists of numerous visa categories and long backlogs for admission for permanent residency. Nearly half of non-citizens in the country today—approximately 11 million people—are deportable. Within the shadow system, as the pool of deportable non-citizens expanded, Congress’s detailed provisions regarding removal became less central to determining who would be allowed to remain in the country. There are simply too many individuals defined by the statute as deportable for the executive to remove them all with the resources it has. And more to the point, we argue in the book, Congress never truly intended for all unauthorized immigrants to be removed. Instead, the executive’s enforcement choices—about whom should be targeted for deportation—increasingly came to define American immigration policy—a dynamic even the Supreme Court has acknowledged. Congress has only fed this system by showering money on the deportation and security states without addressing the impossibility of “full enforcement” of deportation mandates.
Within this system of vast de jure and de facto delegation to the president, the person and party occupying the office matter greatly to the shape of immigration policy. And yet, as the historical and legal narrative we weave in our book makes clear, the election of a new president will not magically eliminate coercion and exclusion from our immigration policy, nor will it prevent the resurgence of recent offenses in the future. Even as our current president has abused the law in pursuit of his immigration restrictionism, much of what his administration has accomplished in this area has been perfectly legal. The president presides over a vast system of laws that empowers whomever is in office to control immigration policy, and without radical reform, we will continue tacking back and forth between grand presidential gestures, with no stability in sight.
Long-Term Vision and Interim Steps
As we explain in the book’s epilogue, we believe a central focus of a long-term vision should be on reforming the deportation machine on the one hand and then reimagining the role of the presidency to take advantage of the virtues of executive governance—flexibility, adaptability, expertise, and accountability—on the other. We call for shrinking the domain of enforcement discretion through a large-scale legalization program and for incorporating into the law mechanisms that enable administrators and future presidents to prevent different versions of the shadow system from remerging, such as narrowing the criminal law grounds for removal, adding statutes of limitations to most of the grounds that remain, and creating administrative processes for case-by-case legalization of non-citizens without status.
A reform agenda should also give serious consideration to creating new crisis management tools. These tools should focus not only on expulsion or deterrence, as does the existing 212(f) suspension power. They should also enable executive officials to admit non-citizens fleeing catastrophe to more durable forms of legal status—status that does not leave the fate of these noncitizens subject to the unfettered discretion of subsequent presidents.
But precisely because this sort of systemic reform has eluded lawmakers for decades, reform must also entail working within the system as it exists. Both the Obama and Trump eras have revealed the semi-militarized nature of our immigration enforcement bureaucracy and the importance of developing internal supervisory structures for constraining and holding accountable line officials. Discrete appropriations laws might also help redirect or tamp down their authorities. The articulation of transparent enforcement priorities by publicly accountable, high-level officials might also help enable congressional, public, and even judicial scrutiny of the shadow system’s operation. The DACA program actually provides an example of this kind of publicly articulated enforcement prioritization, and the judicial oversight and public debate around attempts to rescind it an example of how such transparency might support scrutiny of enforcement discretion. Thus, even as efforts to holistically reimagine immigration regulation are in progress, each branch of government can take steps to reduce the scope and power of the shadow immigration system.
These ideas are just a beginning. One of our hopes for the book is that it will prompt participants in the polarized political battles of the moment to take a step back to understand how our system came to be, which in turn will prompt collaboration by people in the policy trenches to figure out how to change our system’s underlying structures for the better. The reflections of the experts assembled for this series will demonstrate the wide-ranging reform required to stabilize and humanize our system, as well as the difficult choices and political and structural obstacles that lie ahead.
Image: NEW YORK, NY – MAY 13: The Statue of Liberty is viewed from the rooftop of the new Statue of Liberty Museum, May 13, 2019 on Liberty Island in New York City. (Photo by Drew Angerer/Getty Images)