(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).
The President and Immigration Law by Adam Cox and Cristina Rodríguez is a richly detailed and masterful accounting of the current immigration system. As the authors explain, Congress has sometimes explicitly delegated discretion to the executive through statutory provisions – for example, in the setting of annual refugee admissions or the barring of entry or departure of noncitizens in extraordinary circumstances. But the authors’ important contribution is their insightful and detailed exposition of Congress’s de facto delegation of enormous discretion to the executive branch through the overregulation of immigration with a one-size-fits-all penalty of removal while simultaneously conferring vast authority on the president (or subordinate cabinet secretaries) to determine how the laws should be “faithfully executed.” At a time when a defense – or at least a lucid validation – of executive power may alarm many, Cox and Rodríguez nonetheless make a compelling case that presidential power is the norm, not the exception. As such, they force us to grapple with where policy choices meet legal limits, how we should understand the proper exercise of executive power in the immigration arena, and how a reform-minded administration should exercise its authority. That alone is a major contribution.
The source of presidential power that they detail so thoroughly is the delegation – implicit or explicit – by Congress. It is not a claim of inherent presidential power under Article II in the absence of or in contravention to congressional authorization. In that respect, the book casts light on one of the points often overlooked in the debates over the legality of President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs, two signature initiatives designed to provide young people and parents of U.S. citizens protection from removal and a small measure of temporary stability. While challenged by opponents as an aggrandizement of presidential power, the initiatives were actually policy pronouncements made by Secretaries of Homeland Security invoking their statutory authority under the Immigration and Nationality Act (INA) to defer enforcement against – or to forbear removal of – some individuals as an exercise of prosecutorial discretion and prioritization, with attendant eligibility for employment authorization conferred by longstanding regulations. And, leaving aside issues of pretext and impermissible motive, the Trump administration’s policies have likewise invoked statutory authority, not stand-alone presidential power.
This article focuses principally on two issues the book raises but does not address in detail: first, the Supreme Court’s retreat from the principle of judicial review to ensure the legality of immigration enforcement orders; and second, the need for a new, reform-minded administration to be assertive in addressing Trump-era policies. While Cox and Rodríguez briefly examine judicial review (in chapter eight) and invite readers (in the epilogue) to contemplate how a reform administration might exercise presidential power, both topics are worthy of additional discussion. But first, I offer a few observations on two underappreciated sources of presidential power that Cox and Rodríguez rightly highlight: the shadow system of enforcement, and the executive appointment power.
The Shadow System
The shadow system the authors describe is the lived reality for millions of noncitizens every day. It is a system of sweeping deportation grounds (vastly expanded in 1996 by enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)), of summary and process-less denials of admission, of prolonged and indiscriminate detention, and of minor immigration infractions that lead to devastating consequences for individuals with longstanding ties to the United States and their communities. While discretion is baked into the system, the only discretion that really matters is the threshold decision of whether to initiate removal proceedings. Once the government triggers the machinery of removal, the outcome for many is foreordained. Eligibility for the few remaining avenues of individualized discretionary relief is increasingly narrow, and discretionary denials are largely insulated from judicial oversight. As a result, fewer and fewer noncitizens qualify for and obtain relief. In short, as successive administrations have recognized, the critical question is who will be subjected to enforcement in the first place.
The authors’ account is compelling and makes note of IIRIRA, particularly with regard to its novel expedited removal regime. In fact, that legislation’s impact extends across the entire enforcement sphere and can hardly be overstated. IIRIRA enacted historically harsh measures by retroactively imposing grounds of removal and curtailing or eliminating the most crucial grounds for individualized relief that, for generations, had preserved some elasticity to mitigate the rigid deportation grounds.
The Act’s effect today is vastly exacerbated by the Trump administration’s intentionally harsh policies, which expand existing grounds for denying entry or enforcing removal. Examples include maximal expansion of “expedited removal,” new sweepingly-broad “public charge” grounds of inadmissibility, restrictive asylum eligibility criteria for victims of domestic violence, and the expulsion of children and asylum-seekers under the pretense of battling the coronavirus.
Executive Appointment Power
Cox and Rodríguez also refer to another critical, but less recognized, presidential power: the ability to appoint or hire personnel who will enforce the law with a bias toward rigidity and restrictionism. They recount the immigration judge hiring scandal of the second Bush administration but do not add that exposure of the improperly politicized hiring did not lead to wholesale removal or replacement of the tainted judges. The general point – that presidents enjoy the power to hire or promote career civil service personnel with particular values – is one that Cox and Rodríguez do not directly address. But it has played a key role in implementing broader shifts that often outlast specific policies.
A bright spot from the 1980s is then-Chief Immigration Judge William Robie’s deliberate decision to diversify the composition of the immigration judge corps. Rather than treating the position as a promotion for ICE (then INS) prosecutors (known as trial attorneys), Robie intentionally appointed judges from different backgrounds, hiring roughly equally from the private immigration “defense” bar, from other government agencies, and from the traditional source. The effects of that approach rippled across the decades and created a bench of judges whose members came from different sides of the table. Similarly, the Clinton administration expanded the Board of Immigration Appeals (BIA), leading it to become more diverse and more receptive to immigrants’ claims. But as the book reminds us, the Bush Attorneys General then selectively purged the BIA of its most liberal members and appointed immigration judges and BIA members based on political connections that caused the furor the book references. Since 2017, the Trump administration has again tried to skew the immigration courts – over the objection of current and former judges – to serve its restrictionist agenda through selective hiring, expansion, and forced retirements.
Judicial Review and Due Process Precedents: Past and Future
Cox and Rodríguez’s discussion of the extraordinary power conferred on the executive draws much-needed attention to this under-appreciated reality. In contrast, the role of the courts as a check on the federal immigration power, whether congressional or executive, is mentioned only briefly at the end of the last chapter. However, access to the courts and judicial oversight have taken on transcendent importance since 1996 and especially in light of the Supreme Court’s 2020 Department of Homeland Security (DHS) v. Thuraissigiam opinion (which was issued after the book went to press). That decision threatens to undo foundational principles that ensure judicial review.
Where the book does address the courts, I read the authors as emphasizing positive developments in the procedural protections afforded by the Due Process Clause and suggesting that scholars and litigants have over-read the Supreme Court’s canonical cases on judicial deference to the political branches on matters of substantive immigration policy. They then caution that Trump v. Hawaii serves as a break with existing jurisprudence and portends an uncertain future. Rodríguez has separately written a compelling critique of that decision.
The book argues that the foundational plenary power cases are not as much of a doctrinal outlier as is often assumed because “in their proper historical context,” the Court “would have . . . accepted” the same policies “as a matter of ordinary constitutional law” (or that domestic law was still in flux). For support, the authors refer to Chae Chan Ping, Harisiades v. Shaughnessy, and Fiallo v. Bell. The book’s claim is that the Court was applying the then-accepted impoverished conceptions of substantive constitutional protections, not carving out immigration as the subject of special deference. So, for example, in accepting Chinese Exclusion – and establishing the basis for the federal immigration power – the Chae Chan Ping Court was not applying greater deference to immigration legislation. Rather, the Court was accepting race-based classifications and discrimination because that was the norm in that post-Dred Scott era, as reflected in the Court’s upholding of racist Jim Crow laws seven years later in Plessy v. Ferguson.
Similarly, the authors point out that in Harisiades, the Court rejected a First Amendment challenge to a Communist Party deportation statute by noting that U.S. citizens were subject to punishment for the same membership under the then-governing conceptions of free speech. Finally, they point to Fiallo v. Bell, where the Court upheld the immigration law’s gender and legitimacy discrimination because it arose during the Court’s “nascent phase of . . . sex-equality jurisprudence.”
To a large extent, I do not disagree with the authors’ characterization of those particular cases, though Fiallo v. Bell is difficult to fit into their rosy framework. There, the Court expressly acknowledged the “double-barreled” discrimination (gender and illegitimacy) at issue, but it nonetheless subjected the statute to rational basis (or lesser) review, instead of the heightened scrutiny that the Court found applicable to such classifications in domestic law. Notably, in Morales-Santana (the citizenship case subjecting gender discrimination to heightened scrutiny that the book mentions optimistically), Justice Ginsburg’s 2017 opinion for the Court disregarded Fiallo not by questioning its validity, but by distinguishing it as limited to immigration classifications. That case was an opportunity for the Court to discard Fiallo’s analysis, but it reads more like a recognition of Fiallo’s continuing vitality.
Harisiades better supports the authors’ argument. There, the Court upheld the deportation of former Communist Party members against a First Amendment claim that deportation for mere membership violated their freedoms of “speech, press, and assembly.” The Court rejected that claim, but not based on any special lower First Amendment test applicable to noncitizens. Rather, as the book notes, the Court explained that (under contemporary doctrine) citizens could be punished for the same membership, citing Dennis v. United States, meaning there was nothing remarkable about denying the noncitizens’ immigration claims. Implicitly, then, if First Amendment protections became more encompassing, they would apply to deportation grounds as well. Notably, the Ninth Circuit read the decision just that way when it held that noncitizens could not be deported for engaging in speech or activities that were not sanctionable when engaged in by U.S. citizens. Am.-Arab Anti-Discrimination Comm. v. Reno (later vacated on jurisdictional grounds).
Although not mentioned by the authors, Yamataya v. Fisher likewise supports the view that historical immigration cases should be read in their jurisprudential context and not as necessarily adopting special, lower standards for noncitizens. Yamataya is a foundational case where the Court applied the principle of due process, even though the process afforded was close to meaningless. In later decades, as due process itself became more protective, the procedural due process rights guaranteed to noncitizens facing deportation grew. By the 1940s, the Court declared in Bridges v. Wixon that “meticulous care” must be provided, lest a noncitizen lose “all that makes life worth living,” reversing a deportation order based on procedural violations. And in Landon v. Plasencia, the Court explicitly applied the governing Mathews v. Eldridge test to determine the adequacy of removal procedures for a legal resident denied entry.
Grappling with Unfavorable Decisions
So far, so good, and I wish I could subscribe to the authors’ thesis. The problem is not so much with the cases the book describes – which should be cabined, as the authors suggest, to their historical context and as reflecting views that would not or should not be applied today. My concern is with cases the book does not address that reveal a far less hospitable view.
The challenge in developing a modern jurisprudence for how the Constitution enforces individual rights in the immigration/admission context is not just casting off a handful of decisions that should be relegated to their historical context. Rather, a new approach necessitates undoing the destructive turn the Court took in the 1950s, and again in the 1970s. In that respect, I fear that Fiallo v. Bell cuts against the authors’ argument. As already noted, the Court refused to apply heightened scrutiny to gender- and illegitimacy-based immigration classifications, even as it did so in the domestic setting.
Likewise, in Kleindienst v. Mandel, the Court rejected a First Amendment suit by American citizens seeking to meet with a foreign scholar at academic conferences who was denied temporary admission because of his Marxist views. Despite expressly recognizing the First Amendment rights at stake, the Court rejected the claims under an undefined and extra-deferential “facially legitimate and bona fide reason” test that refused to “look behind” the government’s stated rationale. Justice Marshall dissented, insisting that at a minimum, the government should show a compelling justification for exclusion on First Amendment grounds.
Further, the book does not engage with the rights-denying edifice the Court erected in the 1950s for persons seeking entry – a set of cases that is especially significant for current controversies over rights at the border. In Knauff v. Shaughnessy and Shaughnessy v. Mezei, the Court rejected any basis for a noncitizen “seeking entry” to invoke constitutional procedural due process protections regarding their admission. In both cases, the Court proclaimed that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Knauff, the wife of a U.S. citizen, was barred based on secret evidence. In Mezei, the rule was extended to apply even if the denial of due process resulted in indefinite detention based on secret evidence where the noncitizen could not actually be removed. Henry Hart severely criticized the rulings as abandoning the progress of the preceding decades, but those precedents remain intact and subsequent efforts to limit them to their Cold War origins or to overrule them indirectly have not gained traction.
In short, I read the constitutional rights of noncitizens in the U.S. immigration system as having moved in fits and starts, both forwards and backwards. But in Hawaii and Thuraissigiam, the Court is marching decidedly backwards toward a new precipice.
Recent Grounds for Optimism – and Impending Disaster
Two other recent cases again offered glimmers of hope for greater judicial scrutiny. In Sessions v. Dimaya (2018), the Court struck down a substantive deportation statute on the basis of vagueness by reaffirming the applicability of the void-for-vagueness principle to immigration statutes and then importing the analysis it had applied to a similar criminal provision. That decision affirmed that the Court, at least in the realm of vagueness, would not erode the constitutional standard simply because the case involved noncitizens and deportation.
Also of note, in Kerry v. Din (2015), a majority of the Justices appeared ready to give the “facially legitimate and bona fide reason” test some bite. Although the Court affirmed the government’s denial of a visa to the noncitizen spouse of U.S. citizen, Justice Kennedy’s controlling concurrence suggested a significant qualifier to the deferential test: an “affirmative showing of bad faith” that was “alleged with sufficient particularity” could trigger greater judicial scrutiny. Din indicated that even when the Mandel/Fiallo test applied, evidence of impermissible motive would allow the courts to “look behind” the executive’s claim of facial legitimacy to scrutinize the real grounds for decision.
If ever there was a case for finding “affirmative bad faith” based on an impermissible motive alleged with particularity, it is Trump v. Hawaii. The president’s explicit and persistent statements of religious animus motivating the entry ban were unvarnished, uncontested, and unrepentant. Even the majority was forced to recount a few of those statements, and Justice Sotomayor’s dissent catalogued them at length. Her dissent, like the Fourth Circuit’s opinion, found that the president’s actions fit squarely within the “bad faith” exception to the deferential facially legitimate and bona fide test. Yet, the majority only begrudgingly acknowledged the exception, and then effectively rendered it toothless.
The Court also squarely rejected the application of normal Establishment Clause scrutiny to the immigration “Muslim ban.” The Court found the test inapplicable because of the ban’s national security patina, its immigration origins, and the judicial doctrines of deference to federal immigration policies. In doing so, the Court relied significantly on the 1950s and 1970s cases discussed above, where the doctrine took root.
More ominously, it appears we are now on the verge of a new radical erosion of even more basic principles. Instead of adopting a gradually growing level of constitutional protection for noncitizens subject to removal to parallel constitutional protections afforded citizens – as Cox and Rodríguez argue – the Court is charting an extremist path to reject core access-to-the-courts principles that have enforced legal rights against executive violations since federal immigration regulation first began.
In the most under-reported yet deeply consequential immigration ruling in decades, DHS v. Thuraissigiam threatens to eliminate the core basis for judicial review of immigration removal orders altogether. Because it came just days after the celebrated DACA decision, it has been largely overlooked by analysts, commentators, and many scholars.
Thuraissigiam involved an asylum-seeking Sri Lankan who entered the United States without authorization between ports of entry. He was arrested and detained immediately after crossing the border. Under the law, he was entitled to seek asylum, but his claim was denied at the mandatory pre-screening “credible fear” interview stage. He sought to challenge that decision. There are interesting questions about how much process should be due a noncitizen inside U.S. borders who has just entered unlawfully. But Thuraissigiam raised what he characterized as a straightforward legal claim: he argued that the DHS screening process he received had violated his statutory rights.
The writ of habeas corpus has always been guaranteed to noncitizens on U.S. territory who claim their statutory rights were denied – right or wrong, and regardless of any constitutional underpinnings. Legal claims are recognized as challenging the noncitizen’s detention and removal on the ground that the underlying immigration expulsion order justifying the detention is unlawful. Even the most due process-deprived noncitizens like Mezei and Knauff, or the earlier subjects of Chinese Exclusion, unquestionably had access to habeas corpus to present legal claims, win or lose.
Moreover, in a challenge to the government’s denial of habeas corpus to a noncitizen ordered deported under the jurisdiction-stripping regime enacted by IIRIRA, the Court in INS v. St. Cyr exhaustively catalogued the history of immigration habeas law. It emphatically proclaimed that habeas review of removal orders is grounded in the Constitution, pronouncing that “[b]ecause of [the Suspension] Clause, some judicial intervention in deportation cases is unquestionably required by the Constitution.” A few years later, in Boumediene v. Bush, the Court explicitly held that the Suspension Clause ensures habeas review to determine “errors of law, including the erroneous application or interpretation of statutes.”
Yet, in an opinion by Justice Alito, the Thuraissigiam Court dismissed those landmark decisions with scant discussion and ruled that the Suspension Clause’s guarantee of habeas corpus did not apply to Thuraissigiam at all because he was not seeking “simple release.”
Gerald Neuman, for decades the preeminent immigration habeas scholar, characterizes Justice Alito’s majority opinion as “disrespect[ing] precedent,” “misconstruing . . . the habeas petition,” “twisting” the arguments of counsel, relying on a “doubly dishonest” invocation of prior caselaw, deploying a “manipulative version of originalism,” engaging in “willful contradiction,” and “dishonest[ly] claim[ing] that Thuraissigiam was not seeking release.” As Neuman chillingly points out:
A century ago, even at the height of pseudoscientific racism and anti-Chinese bigotry, the Supreme Court was unwilling to abandon the Constitution’s guarantee of habeas corpus as a check on unlawful exclusion and deportation of migrants. In 2020, a Supreme Court majority has thrown away that guarantee in a broadly dismissive opinion that threatens the liberty and safety of citizens and immigrants alike.
Justices Sotomayor and Kagan vigorously dissented; Justices Breyer and Ginsburg concurred but on the narrow, fact-specific grounds of Thuraissigiam’s arrest immediately upon crossing the border and because his claims, properly understood, were “at their core, challenges to factual findings,” not legal claims encompassed by habeas corpus. In a post about the case, Cox and co-author Ahilan Arulanantham emphasize this aspect of the decision.
While the case is limited to its facts and to Thuraissigiam’s particular claim, the Court’s analysis invites a lawless regime of summary immigration expulsions unsupervised by the courts. That is especially true for persons arriving at the border and, more ominously, potentially for noncitizens inside the United States who are deemed to be “seeking admission” despite established ties and residence in the country.
In sum, we are entering a deeply dangerous period where the Court is poised to do lasting damage to judicial checks on executive illegalities by undermining or eliminating foundational principles that have provided noncitizens with a minimal judicial fail-safe against unlawful expulsion throughout our history. The radical unraveling that Thuraissigiam portends exceeds even that which occurred in the 1950s. I would like to share the authors’ optimism, but if the current trend is not recognized and reversed, the abuses of the present will be dwarfed by those that the current, or a future, xenophobic administration may choose to adopt.
A Brighter Future
The dangerous judicial trend is not, however, the only current dynamic. My second and more optimistic reflection on the book is how the authors’ view of presidential power should inform our thinking about the potential for action by a new, reform-minded executive. The Trump administration’s avalanche of policies distorting and dismantling immigration procedures and protections is well known. But the mechanism for achieving those ends is less well understood.
Of particular significance here, none of the Trump-era policies are the result of laws or legislation. Most are not even the product of formal rules or published regulations. Instead, the Trump administration’s measures consist almost exclusively of various types of executive action: nearly fifty presidential orders and hundreds of sub-regulatory administrative and executive initiatives, including policy directives, memos, guidelines, form changes, FAQs, lesson plans, Attorney General legal opinions, and other administrative actions. By my count, the total is nearing 1,000.
What is enacted by administrative action can be undone by administrative action. Of course, as the DACA litigation has demonstrated, the Administrative Procedure Act’s requirements must be followed, and statutory obligations must be fulfilled. But for every Trump policy put in place since January 2017, there was a predecessor policy already vetted and operationalized that, at a minimum, can serve as a baseline to which a new administration could turn for guidance, or upon which new policies could be built. The current status quo should not be the starting point for a new administration committed to reform.
Nor should the status quo ante be the end point for what constitutes reform. Devising new, humane policies and implementing them effectively and quickly is admittedly not easy. Compliance with procedural requirements and meaningful inter-agency consultation are important tools of good government. But acting promptly is essential and, as the authors so effectively point out, the president and executive branch are vested with great power and discretion.
That presidential power, in turn, generates pressure to act quickly and decisively. The demands of the moment are unique, and the damage done becomes more entrenched and increasingly difficult to undo the longer the policies remain in place. The value of deliberation and consultation must not overwhelm the urgency of achieving change. A 2009 GAO study examined a sample of rules and found the average time for completing rulemaking to be four years, with ranges of one to fourteen years. Given the humanitarian and policy emergency facing the country, it is unrealistic to postpone new policies for such protracted periods of time.
A lack of assertive action by a new administration would leave in place the Trump administration’s inhumane, precipitous, and often-unlawful actions, thereby unintentionally rewarding the values and norms that generated them and potentially complicating their reversal. Those who would continue to suffer the consequences most severely are the people and families denied entry or reunion, the asylum-seekers denied the process and procedures required by law, and the businesses blocked from recruiting qualified workers. The country’s competitive advantage in attracting the most talented and innovative individuals from across the globe would also continue to erode. But more fundamentally, the nation’s identity and collective sense of self are diminished when immigration policies no longer reflect the nation’s values and aspirations. The longer Trump-era polices remain in place, the more deeply their xenophobic, nativist, and white-supremacist origins infect the immigration system and society as a whole.
Assertive action by a new administration is also necessary for principles of democratic legitimacy. Preserving and bolstering confidence in the constitutional system and in the value of the electoral process requires a new administration – if one is elected in November – to reject decisively the policies most identified with the administration that the voters have renounced. Those who mobilize and vote to change the presidency need to see that concrete outcomes result from a change in administration. If a new administration is overly cautious, slow, or reluctant to exercise the power that – as Cox and Rodríguez elegantly explain – it legitimately wields, then we risk an electorate that becomes increasingly disillusioned with the electoral process, and perhaps with the constitutional structure. Immigration policy is one defining characteristic of the Trump administration, though plainly not the only one. Actions to redress profound and growing economic inequality, systemic racism, climate change, and the raging pandemic are also of burning urgency. But immigration policy provides a new, reform-oriented administration with the opportunity to break decisively from its predecessor precisely because this area of law – as Cox and Rodríguez elucidate – is subject to extraordinary executive discretion. Electoral expectations for change in this arena will thus be understandably high.
While adherence to meticulous procedures can confer legitimacy, that cannot substitute for achieving policy reforms. In The Procedure Fetish, Nicholas Bagley provocatively warns liberals against overemphasizing procedural norms at the expense of substantive outcomes. He explains that while proceduralism can play a role in “preserving legitimacy and discouraging capture,” it also “advances those goals more obliquely than is commonly assumed and may exacerbate the very problems it aims to address.” Procedural rules that hobble federal agencies or handcuff agency leaders can thwart efforts to achieve positive reform. Bagley argues for a “positive vision of the administrative state” that advances substantive policy goals – a trenchant observation that is especially relevant to an immigration reform agenda.
Effective change also means prompt, discernible, and positive change at the agency level, especially in the immigration bureaucracy. Meeting the challenge of implementing reform requires changing bureaucratic culture, addressing the internal dynamics that militate in favor of the status quo, ensuring personnel that will faithfully execute new policies, and effectively using the presidential discretion that Cox and Rodríguez champion. In that respect, the authors importantly argue that exercising discretion should not be understood solely as the authority of line officers to make individualized decisions. I have addressed elsewhere the pitfalls and barriers to achieving reform through policies that depend on line adjudicator exercise of discretion. Defining discretion as giving every line officer or adjudicator the authority to make decisions is a recipe for chaos in place of coherent and transparent policy. As Cox and Rodríguez assert, “political officials ought to have considerable control over the way the bureaucracy wields its discretion.” That is essential for good policy, effective governance, and democratic accountability.
The Next Challenge
Having demonstrated the power of the presidency, the book’s epilogue invites readers to think more creatively about how presidential power should progress beyond setting negative enforcement policies and instead – or in addition – exercise discretion positively to grant legal protection and benefits to noncitizens. That is a largely unexamined area that urgently needs deeper exploration — and that I hope these insightful authors will pursue next.