(Editor’s Note: This article is part of 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. All articles in the series can be found here).
In their new book, The President and Immigration Law, Adam Cox and Cristina Rodríguez contextualize a range of legal developments, from the litigation challenging Arizona’s SB1070; to the use of broad prosecutorial discretion in the Deferred Action for Childhood Arrivals (DACA) program; to President Donald Trump’s Muslim Ban. Cox and Rodríguez make a convincing argument that these actions and policies can all be seen as part of the process by which the executive has solidified a “principal” role, along with Congress, in shaping immigration policy. This reframing of how we should analyze, critique, and reform the current division of power between the executive and legislative branches alone makes the book worthy of inclusion in the immigration law (and separation of powers) canon.
But the book also presents what are bound to be contentious arguments about the desirability of such a division of power, and what changes to immigration law would be necessary to address concerns with such a dual principal system. Advocates, including the organization I work for, the National Immigration Law Center (NILC), are currently litigating cases testing some of the authors’ thesis in real time, as the president attempts to exercise power in untested ways, raising concerns about the ability of existing regulatory and constitutional oversight to address abuses of this power.
Executive Power Beyond Enforcement: Quasi-Legislative and Quasi-Judicial
Central to Cox and Rodríguez’s argument is the extent to which the president’s enforcement power confers the ability to shape immigration policy. They note that since half of all noncitizens in this country are currently undocumented—in other words, subject to removal—their fate is squarely within the hands of the governmental branch charged with, and granted wide latitude over, enforcing the law or forbearing enforcement. The executive branch has centralized control of these processes, and this ability to choose the extent and manner of enforcement gives the president enormous influence over national immigration policy. But to fully understand the extent to which the “two principals” framework operates, it is necessary to consider not just how the president shapes immigration policy through enforcement, but also through the regulatory and quasi-legislative and quasi-judicial power provided to the executive by the Immigration and Nationality Act (INA).
Many of the examples used by Cox and Rodríguez are squarely within the executive’s enforcement power. Such examples include systemic efforts to uniformly administer the forbearance of deportation, such as the DACA or Morton Memos. But Trump’s Muslim Ban was undertaken pursuant to a statutory provision (Section 212(f) of the INA) that allows the president to expand the grounds for barring entry of noncitizens beyond that which Congress has specifically delineated. To emphasize how executive enforcement power operates to shape public policy, Cox and Rodríguez analogize immigration enforcement to police discretion as to when to pull someone over to enforce oft-violated traffic laws. While this analogy holds well for examples like DACA, it does not hold as well for other areas in which the INA specifically grants the president power to set additional restrictions, such as in the refugee and inadmissibility contexts. Taking Cox and Rodríguez’s example, mutatis mutandis, if a mayor issued a decree that there is different speed limit for Muslim drivers than other drivers, it would surely be an executive directed policy, but it is unclear why this would be defined as enforcement power rather than legislative or rulemaking power.
Thus, much of the president’s policy-setting power in the immigration context cannot be purely—or even principally—described as enforcement power. As described above, the president can, through the 212(f) power, take actions that are more akin to legislative determinations. In other cases, the executive branch makes judicial determinations through the attorney general’s ability to self-refer immigration appeals for adjudication. The fact that Congress has delegated this and similar kinds of authority to the executive reenforces the descriptive reality of the two-principals model, but calls for a closer examination of the extent to which the INA both grants and potentially limits executive power in these quasi-legislative or regulatory contexts.
Applications of Presidential Rule-Making
The president has attempted to use these quasi-legislative powers to create immigration policy shifts on par in scale with his enforcement power. Cox and Rodríguez rightfully highlight how the geological layering of statutes in the INA over the decades makes it difficult to reconcile legislative intent, and thus scope of authority, when evaluating competing provisions of the INA, and this can similarly present problems in the regulatory context. For example, the Department of Homeland Security (DHS) and State Department (and potentially the Department of Justice) have issued regulations which would expand the previously little-used “Public Charge” basis for denials of admission from a definition previously thought to be synonymous with being a pauper or committed to an alms house, to one that would bar nearly half of the American population if applied to citizens. The president is also using executive power to deny admission of individuals – not because they pose a national security threat or because of foreign relations concerns, as this power of individual exclusion has historically been used – but because they may lack resources to pay for private health insurance. The president has used this INA-delegated authority to radically alter the viability of the family-based immigration system and to impose wealth tests on new immigrants, the result of which would be a racial reshaping of who is allowed to enter this country – thus making immigration flows whiter than they have historically been.
This understanding of the extent to which the president alone can functionally operate as a dual principal forces us to further grapple with factual and normative questions about principal/agent relations in the regulatory context. Given the relative openness of the INA to executive branch determinations, which limits the investigatory power of litigants and the scope of reviewing courts, demonstrating that an agency acted “arbitrarily” becomes extremely difficult. This raises questions about whether administrative law, or even the bureaucratic state, provide sufficient safeguards against arbitrary action.
Cox and Rodríguez should not be faulted for their desire to ground their theory in the ideal separation of powers as opposed to basing their conclusions on the actions of one demagogue, but as a result they underestimate the threat posed by a regime willing to mobilize the aggregated power of the executive. There is always a risk that centralized power can be captured, and many of the protections Cox and Rodríguez highlight, including the professional bureaucracy of the administrative state, have been significantly eroded during the Trump administration. Indeed, the administration is attempting to shield from public disclosure basic information on the regulatory decision-making process, and is taking even more extreme steps, such as removing governmental officials who stand in the way of this president’s agenda and installing officials in circumvention of congressional safeguards. Examples of the latter include the elevation of individuals to seemingly permanent “acting” positions in contravention of the Federal Vacancies Reform Act (FVRA), such as Ken Cuccinelli as purported Acting Director of U.S. Citizenship and Immigration Services (USCIS), and Kevin McAleenan (formerly) and Chad Wolf (currently) as the purported Acting Secretaries of DHS, who have sought to implement not only enforcement related decisions, such as the continued efforts to repeal DACA, but also the regulatory changes such as expansion of public charge.
Constitutional law may be similarly unlikely to provide the necessary safeguards on exercises of the executive power. Over the summer and early fall, the terrain has gotten even worse. The Supreme Court has limited due process protections to which immigrants are entitled, recently reversing the Ninth Circuit’s decision in Department of Homeland Security v. Thuraissigiam and severely limiting habeas corpus review. Indeed, with this decision, the Court once again relied on the racist line of cases, including Nishimura Ekiu v. United States, that Cox and Rodríguez argue should be viewed as minimized in importance. Indeed, Cox himself (with Ahilan Arulanantham) has written in Just Security that Thuraissigiam presents an alarming precedent, one which notably expands executive discretion in habeas cases and beyond. Indeed, recently in Pham v. Ragbir, the Court, in light of Thuraissigiam, vacated the Second Circuit’s decision upholding the Plaintiff’s challenge to his detention on First Amendment retaliation grounds, signaling that Cox and Arulanantham’s fears may be well founded. Gerald Neuman has gone further, noting that the threat to due process presented by this case demonstrates not only the insufficiency of safeguards to immigrants’ rights, but the risks of the broad exercise of executive discretion to understandings of due process writ large.
Equal Protection Principles: An Unreliable Judicial Standard to Curb the Executive
Cox and Rodríguez’ faith in equal protection principles is perhaps even less warranted. While the deferential standard of review of executive motive (purportedly motivated by extraterritoriality and national security considerations) in Trump v. Hawaii should, as Rodríguez has argued elsewhere, not be exported to other contexts, reliance on standard Equal Protection jurisprudence, as Critical Race Theory and other scholars have demonstrated, has not served as a viable mechanism for preventing governmental actors from engaging in actions that will disproportionately impact discrete and insular minorities.
Indeed, in the Supreme Court’s recent DACA decision, Chief Justice Roberts found easy recourse in the existing Equal Protection framework. Relying on the Arlington Heights framework, which fundamentally focuses on the governmental actor’s intent, Chief Justice Roberts did expressly do what he merely did by implication in Hawaii: falsely cabin (through temporal separation and other means) what can only be understood as overtly racist statements to largely foreclose plaintiffs’ Equal Protection challenge. This portion of the decision, which was largely overlooked by most commentators, is already having negative reverberations in challenges to other discriminatory actions by this administration, including in the public charge and TPS contexts where courts have relied on the DACA decision as a basis for dismissing equal protection claims in these additional contexts.
Finally, any discussion of whether and how to allocate power to the executive needs to take into account two realities. Cox and Rodríguez, as well as others, have highlighted how the institutional culture of DHS makes it particularly subject to abuse. But we do not have to speculate about whether the president would be able to use his existing immigration-related powers to mobilize a praetorian guard. The realities Latino communities have long experienced at the border at the hands of DHS and the abuses of its agents are now in full view in front of St. John’s Church and in the streets of Portland.
Second, any consideration of the desirability of the two-principals vision of the executive needs to account for the actual role of racism and xenophobia in immigration law. This racism is not simply consigned to either the beginning of immigration law or the current moment. Rather, this racism has been cyclically constitutive of immigration policy throughout the history of immigration law. The two- principal vision does not solve this problem, but the continuing hesitancy of the Court to adequately check such action by the executive should give all advocates cause for concern that it will happen again – and that the centralization of insufficiently checked presidential power will allow it to continue.