(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, Professors Adam Cox and Cristina Rodríguez advance the conversation on immigration in at least two critical ways. First, they illustrate that, despite popular and scholarly opinion to the contrary, the recent centrality of the executive in immigration policy and law-making is in line with both historical practice and constitutional design. Second, they detail the instability of a system increasingly reliant on largescale acts of enforcement discretion to ameliorate the harms that would otherwise flow from a long-broken system incapable of operating strictly on its own terms. In both respects, the authors provide essential insights that should inform the development and implementation of immigration policies by the next administration. In describing the corrosive effects that the “enforcement imperative” has long had in our immigration system, however, the authors adopt a narrow concept of “enforcement” that may constrain the conversation about what enforcement of our immigration laws can and should look like and unnecessarily – and ill-advisedly – frames some necessary and appropriate administrative actions as “non-enforcement.”
Presidential Centrality in Immigration Law-making
The first insight – and the one that informs the book’s title and dominates the text – is that there is nothing historically anomalous about the idea that presidents have vast power to shape immigration law. While Congress establishes the rules, including the rules of who may enter the country and who may be removed, it has delegated to the executive – explicitly and implicitly – substantial authority to enforce those rules as well as to make exceptions to those rules.
The statutory parole authority, for instance, grants the president the power to allow entry to people – including wide classes of people – who are inadmissible according to the rules established by Congress. Conversely, the statutory suspension authority grants the president the power to deny entry to people – including wide classes of people – who are admissible according to the rules established by Congress. Through Temporary Protected Status, deferred action, deferred enforced departure, and various other exercises of enforcement discretion – some prescribed by statute and some entirely extrastatutory – presidents hold the power to protect individuals from deportation and generally to authorize them to work. The Supreme Court’s recent decision in the Deferred Action for Childhood Arrivals (DACA) case reaffirmed the executive’s strong and arguably unreviewable authority to adopt at least simple enforcement forbearance policies, including those that would affect large classes of people.
While the Obama and Trump administrations each made ample use of this delegated authority, they did so to serve entirely different ends. And through its relentless assault on our immigration, refugee, and asylum systems over the past four years, the Trump administration has proven to be more methodical at identifying and exploiting the tools left to them by congressional action or inaction than its predecessor. It is imperative to undo the damage wrought by the Trump administration’s current policies, and to use every tool of executive authority to move our immigration system closer to one that aligns with the country’s realistic interests and highest ideals.
Importantly, the Trump administration has demonstrated that different policy approaches to the same or similar issues can be adopted simultaneously and in overlapping ways. Over the past four years, for instance, would-be asylum seekers from Central America have at different times been prevented or deterred from requesting protection in the United States by perhaps half a dozen different policies. Fully understanding these nested policies has been difficult for the public, while attacking them in real time has proven challenging for litigators – undoing them in a future administration will require care and precision.
This overlapping approach to advancing executive priorities provides a strategic lesson for any future administration. Rather than focusing executive action on a handful of major reforms designed to each address distinct issues, the next administration should early on and throughout its time in office consider taking multiple and aggressive policy approaches – big and small – drawing upon different statutory and administrative authorities to protect the widest number of people, and make the enforcement and adjudication systems more fair, humane, and workable. This full court and sustained press will be all the more important given that they can expect to face a multitude of legal challenges before an increasingly hostile judiciary.
An Increasingly Unstable Reliance on Discretion
The second and perhaps more interesting insight in the book is that while executive action has long been a feature of immigration policy – and is both necessary and appropriate within any regulatory system – the extent to which we have had to rely upon enforcement discretion in recent years as the only way to inject common sense and humanity into an increasingly unjust system is both anomalous and largely unsustainable.
Over the last 30 years, Congress has done nothing to address structural flaws in our immigration system that set it up for failure. For too long, the system has been incapable of meeting the realistic needs of American society, American businesses, and American families. Predictably, this has led to the emergence of an extralegal immigration system – what the authors refer to as our “shadow system” and what Professor Hiroshi Motomura has long described as “immigration outside the law” – that only works, to the extent that it works, because of our tacit agreement to accept the benefits of this system that strengthens our country in so many ways even as it does so at considerable expense to many immigrant families and communities.
But even as Congress has been unable over this time to address the significant flaws in our immigration system, it has been successful at both layering on additional cruelties and removing, restricting, or allowing to wither on the vine tools that long helped to ameliorate the growth of dysfunction. For instance, Congress has not advanced the registry date – which allows undocumented immigrants who have continuously resided in the country for the requisite number of years to apply for lawful permanent residency if they meet certain requirements – since 1986, so this pathway to regularizing status has for 34 years been open only to people who arrived before January 1, 1972. Congress has also failed to extend adjustment of status under section 245(i) of the Immigration and Nationality Act since 2000, so it currently provides an avenue for permanent lawful status only to undocumented immigrants in the country today who are the beneficiaries of petitions filed on or before April 30, 2001 – nearly 20 years ago. Each of these pathways – which have, in the past, helped to regulate the size of the undocumented population in the country – is therefore available to a vanishingly small number of individuals. Likewise, in 1996, Congress eliminated a fairly common form of discretionary relief from removal for long-time residents (i.e., suspension of deportation), replaced it with new forms of relief carrying higher standards and greater ineligibility bars (i.e., two forms of cancellation of removal), and set an arbitrarily low numerical cap on such awards – making the relief effectively irrelevant even for people who could meet the exacting test. While acts of discretion within a largely functional regulatory system can help to smooth the edges by addressing individual instances of manifest injustice and setting sensible priorities for enforcement, the amount of discretion needed to avoid the societal harms that would otherwise flow from a system as fundamentally broken as our immigration system is so great that it either undermines faith in the system or faith in the executive’s fidelity to upholding the law.
For this reason, it should come as no surprise that robust exercises of enforcement discretion like the DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiatives of the last administration were viewed by some (though incorrectly) as the executive’s failure to honor its constitutional duty to “take care that the Laws be faithfully executed” or that calls to end enforcement entirely have grown louder during the current period of maximal enforcement. This maximal strategy was described in 2017 by then-U.S. Immigration and Customs Enforcement Acting Director Thomas Homan as enforcement of “the laws on the books without apology.” Our longstanding legislative paralysis produces a vicious circle, where the abject cruelty of the system itself demands increasingly expansive forms of administrative relief, which feed calls for increased enforcement that only heightens the need for still greater protections, ad infinitum.
This is not to say that the next administration should shy away from using enforcement discretion or should avoid large-scale administrative reforms – on the contrary, the need for such actions has perhaps never been greater, as one would expect from the preceding paragraph. Moreover, the destabilizing effects to families, communities, and the country of continuing to pursue a maximal enforcement strategy like the one currently adopted by the Trump administration would be far greater than the alternative. But as it does so, the next administration should articulate clearly to the American public why such efforts are designed not as an end in themselves, but as a means to bring us closer to the fair, humane, and workable immigration system that the country needs. Such reforms will make it easier to administer and, in time, design an immigration system that everyone – not just immigrants, but all of us – can be expected to follow and whose rules everyone believes should be enforced in a fair and just way.
To articulate that vision, the next administration should pay close attention to the interplay between executive action and legislation. Since there will rightly be intense pressure to immediately adopt bold executive actions that protect families and reverse the worst abuses of the current administration’s policies, legislation that offers permanent legal status to the greatest number of people possible will – in addition to offering durable protection – have the salutary effect of shrinking the scale and nature of subsequent executive actions. Not only will such legislation likely help to make future executive actions to provide some measure of protection from detention and removal more easily defended against legal challenges, but it also may help to counter the inevitable complaints of critics who point to large-scale relief as evidence of an out-of-control executive.
Promising legislative options already exist. In the current Congress, the House of Representatives has passed—with bipartisan support—legislation providing a path to citizenship for Dreamers and Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) holders as well as for undocumented farm workers. And both versions of the House-passed Heroes Act would provide essential critical infrastructure workers with temporary protection from deportation in the form of deferred action and work authorization. The national economic recovery package that Congress will need to take up early in 2021 may provide an important opportunity to achieve multiple important and reinforcing policy goals all at one time.
The interplay works in the other direction as well. Executive actions—once they take hold—effectively change the status quo. This means that while future administrations will have the power to end such programs, they may encounter increased opposition from the public, the legislature, and reviewing courts. This latter point is particularly salient as many of the Trump administration’s efforts to withdraw protections have so far been held at bay for years as a result of preliminary injunctions in which the balance of the equities fell heavily in favor of DACA recipients and TPS holders, for instance.
Executive actions can also make it easier for Congress to enact legislation that builds upon what already has been done. That was the case when Congress provided green cards to spouses and children of Immigration Reform and Control Act (IRCA) beneficiaries who were themselves only granted discretionary protection from deportation under the Family Fairness program created by President Ronald Reagan and expanded by President George H.W. Bush; to certain Chinese nationals who were first protected from deportation through Executive Order 12711 issued by President George H.W. Bush; and to Liberian nationals who were protected at various times by TPS and/or DED before Congress enacted the Liberian Refugee Immigration Fairness Act as part of the FY 2020 National Defense Authorization Act. Each of these executive actions led to subsequent legislative “ratification” – just one of many ways that executive initiatives can lead the way in immigration policymaking.
Enforcement Beyond Coercion
In short, the book provides a deep understanding of the immigration policymaking tools that the next administration will have at its disposal, as well as a justification for the legitimacy of using such tools. It concludes by sounding a normative alarm about the unsustainability of maintaining such an enforcement-centered approach to immigration regulation.
Here I would challenge the authors, however, on their narrow conception of enforcement. In Chapter 8, they write: “Enforcement of the law entails coercion. The tools of enforcement – investigation, arrest, detention, sanction – threaten the loss of reputation, money, security, dignity, and liberty.” But enforcement of the law must mean enforcement of all laws – including those that offer opportunities to gain freedom from coercion by obtaining relief from removal and legal status as well as those laws that afford the executive discretion to decide when and how to use its coercive authorities. In recent writings, Peter Markowitz has explored a different view of enforcement – “cooperative enforcement” – that is utilized in other civil enforcement regimes. In such systems, people who are acting in violation of the law are given opportunities to come into compliance with the law rather than exclusively facing punishment.
This distinction matters because if enforcement is thought of as necessarily punitive and coercive, then decisions not to use the punitive and coercive authority of the law will always be viewed to some degree as non-enforcement. Crucially, even when people fundamentally appreciate that our immigration laws do not work and must be fixed, they still believe strongly that full enforcement of those laws would do more good than harm. It is politically and rhetorically important, therefore, to articulate the ways in which fair and humane policies designed to increase compliance with the law are, in fact, advancing the enforcement of the law. When exercising executive authority, the next administration should look for ways to provide on-ramps to compliance, as the Obama administration did with its military parole-in-place and provisional waiver programs, for instance, so that it can point concretely to increased compliance as evidence of increased fidelity to the law. This can be contrasted with the current administration’s cruel and senseless efforts to terminate DACA and TPS, which would have the grossly disorderly effect of de-documenting nearly one million people.
Moreover, while it is certainly true that much enforcement is based upon coercion, another tool of enforcement that is not coercive is the moral, persuasive power of the law to encourage compliance. If the country’s genuine wants and needs surrounding immigration could realistically be accommodated by and channeled through a fair, humane, and workable regulatory system, the enforcement conversation would look quite different; it would be centered around the best ways to maintain the integrity of a system generally believed to be deserving of respect – think about discussions of enforcement of civil rights laws or the Voting Rights Act, for instance. In such a system, the coercive and cooperative aspects of enforcement could still be brought to bear on individuals who choose to violate or otherwise run afoul of the rules. But to a far greater degree than today, where the system itself survives only because we collectively choose to look the other way at pervasive rule-breaking on all sides, the laws generally would be enforced through norms of compliance.
The point here is that it is not enough to lament how central the topic of enforcement is in immigration policy without also reckoning with how unenforceable – and unworthy of enforcement – so many of our immigration laws are today. Clearly it would be impossible to create such a system in the absence of significant legislative reforms, but maintaining the aspirational goal of restoring respect for our immigration system and rebuilding the moral, persuasive power of the law can also help guide an administrative reform agenda. When official policies more closely align with core American values like fairness and humanity, they can begin to restore faith in the system itself.
Image: YAKIMA, WA – FEBRUARY 18: U.S. Immigration and Customs Enforcement (ICE) detainees board a Swift Air charter flight at McCormick Air Center on February 18, 2020 in Yakima, Washington. The U.S. Justice Department is suing King County after it banned ICE from operating charter flights for detainee transport at King County International Airport, forcing the agency to bus detainees to Yakima for flights there. (Photo by David Ryder/Getty Images)