The President and Immigration Law Series: Reflections on the Future of American Immigration Policy

[Editor’s note: Over the past two weeks, Just Security has published a series of articles responding to the new book, The President and Immigration Law, by Cristina Rodríguez and Adam Cox. The series brought together expert voices on immigration policy and reform. In this response essay, Rodriguez and Cox reflect on these contributions and the path forward for building better immigration law, through presidential power and other means. All articles in the series can be found here.]

Enforcement drives American immigration policymaking today. The wonderful essays in this series responding to our book all reflect this reality, and taken together they underscore two crucial points.

First, they highlight the great human cost of the regime. Josiah Heyman’s contribution in particular reminds us of what is so often elided in policy debates – that the border is not an abstraction, but rather a populated American environment, a physical space filled with complex lives. He captures how high-level acts – like declarations of emergency – effectively erase what is otherwise a state of normalcy in the borderlands, compounding the racist and reductionist ways policymakers and many Americans conceive of the need for immigration policing at the nation’s supposed outer edges. His account of the borderlands brings into the most acute relief how abstract or theoretical debates over the polity’s right to construct itself by deciding whom to let in cannot be divorced from the everyday experience of immigration policing – and the vibrant, migratory lives it disrupts.

Second, the essays offer a range of options for transforming this system – either by taming the machinery of enforcement or repositioning it around an entirely new paradigm of regulation. These suggestions for the path forward fit into three broad categories of change we discuss in the book, and we offer here some final reflections along those lines. We begin with the reform tools that will be most readily available, if and when the government changes hands: reforms to the bureaucracy headed by the executive and rescission and reformulation of past administrative policies. We next discuss the role we can expect courts to play and then consider how Congress and the executive working together might amend existing legal authorities to tame the enforcement logic. Finally, we revisit the most difficult questions we began to explore in the book’s epilogue: what would it take to significantly demote or even eliminate the enforcement logic from immigration policymaking altogether? Do the histories and policies interwoven in these essays give us any reason to believe that such transformation is possible?

Reforming (and Exploiting) the Bureaucracy

It may well be that the best we can do to make our system more humane will be through executive fiat. So let’s begin there.

Tom Jawetz launches his essay with a bracing premise: that the next administration should exploit its immigration authorities as ruthlessly as the current one. Arguably with a grudging admiration of the comprehensive way in which the Trump administration has utilized and reconfigured the bureaucracy to serve its ends, he advocates a similar nesting strategy, but with humanitarian and immigration-enhancing goals in mind. Lucas Guttentag, too, acknowledges that the very same tools deployed by the current administration could be used to great effect if an administration that prioritizes immigrant admissions and integration, as well as humane treatment, comes into place. He reminds us of the inescapable tradeoff in bureaucratic administration between the virtues of deliberation and consultation on the one hand and the urgency of action on the other. Essays such as Margo Schlanger’s, which underscore the grotesque overreach of civil immigration detention, and Heyman’s, which highlights the militaristic fantasy at the border, call our attention to the urgency side of the equation and therefore to the inescapable need for executive action.

The question, of course, becomes whether it is possible to identify bureaucratic reforms with staying power – those that might have lasting effects versus those that amount to on/off switches, to be undone easily by successors. Heyman and Schlanger offer the sort of internal bureaucratic reforms that might last, because they focus on creating lines of supervision, or actual structural controls on line-level discretion. Guttentag, too, makes a crucial structural point: that presidents and their administrations hire the civil servants who will outlast them – civil servants who are not automatons who simply apply some objective version of the law but who instead hold worldviews that will infuse their judgments. This is a lesson in personnel that a new administration will hopefully learn quickly.

The larger hope for the sorts of executive actions highlighted throughout the series is that they will serve as predicates, or priming strategies, for a deeper transformation. Jawetz reminds us how executive action can help set the terms of larger political debate and shape the measures Congress might adopt. Executive-granted discretionary statuses may be tenuous in themselves, but their extension nonetheless shifts the window of what might be politically possible or necessary – as well as the status quo against which subsequent decisions will be assessed by the public and judiciary. This is the story to date of DACA, after all.

Jawetz discusses one example of this iterative development of protection, beginning with discretionary forbearance and progressing to legal protection. Liberians were first granted a discretionary status – known as Deferred Enforced Departure – by the president in 2007; a series of extensions of this status eventually led Congress to grant permanent residency in the National Defense Authorization Act of 2020. We have seen this one-two policy progression, led by the executive branch, time and again in immigration history. Indeed, in the book, we highlight how the bureaucratic creativity that presidents have used to advance their immigration agendas has pushed Congress to act with lasting and permanent effect. These dynamics demonstrate how structural dynamism within the executive can shape political debate.

And yet, there is still something too ad hoc, too contingent, about these strategies. They keep us stuck in an endless cycle of counterpunching and adaptation. As we argue in the book, these swings also exact a human cost; uncertainty can cause emotional and psychological suffering and impose economic costs in the form of foregone investment by immigrants uncertain if they will be able to remain. Even as these bureaucratic and administrative measures represent the most realistic options for (temporary) change, then, the undercurrent of these essays runs toward imagining a better system altogether.

A Role for the Courts

Much of the Trump immigration agenda is in various stages of litigation. Indeed, the Supreme Court just granted certiorari on two major initiatives – the attempt to reallocate military funds to construction of the border wall and the so-called “Remain in Mexico” policy for asylum seekers at the southern border. And yet the courts have played a valuable but limited role in immigration policymaking over the past several decades. The immediate reason for this limited emphasis is that much of what we have described is beyond court supervision – it is part of the daily operation of the immigration enforcement system that courts typically do not oversee. The somewhat optimistic story of judicial review we tell in the book, even if correct, still operates at best on the margins of the system, mainly by slowing executive action through the application of procedural requirements, as the DACA decision illustrates.

But as Nicholas Espiritu and Guttentag emphasize, the courts have taken troubling turn in the last couple of years. In Trump v. Hawaii, as we have argued separately and together, the Court broke sharply with past precedent, holding that Trump’s ban on immigrants from several majority-Muslim nations was constitutional regardless of whether the president was motivated by religious animosity. Since our book went to press things have only gotten worse. In Department of Homeland Security v. Thuraissigiam, the Court held that noncitizens apprehended shortly after crossing the border have neither due process rights nor any right to challenge the government’s decision to deport them in court. This is more than mere deference to the executive: it is, as one of has argued, a categorical rejection of noncitizens’ rights that the Supreme Court has carefully reserved for more than a century – permission to Congress to trample those rights if it suits lawmakers’ policy or political goals.

In each of these cases, the Court is not just allowing executive action to go unchecked, but it is also upholding or validating a statutory scheme that relies on congressional power to limit immigrants’ rights and court supervision. The Court is thus validating the collaboration between the political branches that has given us the current enforcement regime critiqued in our book and throughout this series. The Court is also insulating from constitutional review the statutory structures that have enabled the enforcement abuses brought to light by the authors of the series.

Perhaps perversely, this developing world is one in which executive discretion may in fact be the only source of hope, as long as Congress retains the most sweeping features of the enforcement edifice it has created. In a world in which Congress has the power to authorize expedited removal – removal without meaningful procedures of any kind – of any non-citizen who cannot show she has been in the United States for more than two years, only gratuitous executive discretion restrains this sweeping power. Indeed, before Trump, no administration had used expedited removal to its maximum extent as authorized by Congress. The Supreme Court has now cleared the way for the enforcement vision of immigration policy to rule, and the question becomes how to change the underlying structure of the laws so that hope rests on more than the prospect of a benevolent or well-intentioned executive.

Changing the Law

The contributions point to a number of reforms to the law itself, beyond those we highlight in the book, that would dramatically move us away from the enforcement logic of the system. Jawetz’s reminder – that our system of laws contains many that are not worth enforcing or not possible to enforce consistently – necessarily leads us to this form of inquiry.

Some of the statutory reforms we would consider salutary would be crystalline and simple – and yet transformative. Heyman reminds us that the border zone is a legally defined construct and that Congress could choose to define it more narrowly – not as 100 miles into the interior, but perhaps 30, 20, or 10 miles past the line on the map that forms the shape of the United States and demarcates the vast land and coastal boundaries of the nation. Jawetz notes that the registry provisions, which should allow for regularization of status for certain undocumented immigrants, could once again fulfil this function if the date in the Code were updated (it has not been changed since 1986).  Indeed, we would go so far as to advocate delegating the authority to the executive branch to update (but not backdate) this provision, in the spirit of using the virtues and not just the vices of executive governance to keep our system of laws current. Taking inspiration from Schlanger, Congress could limit the purposes for which detention is used and require individualized bond hearings to justify detention, unmaking both the mandatory components of its detention regime and shifting the resources allocated for detention to other purposes.

Espiritu, too, is right to point to the need to rethink expressly delegated authorities, many of which Trump has exploited to maximal effect. Many of these do not involve enforcement, per se, but do embody the logic of exclusion or expulsion. The president’s authority to exclude noncitizens, delegated in Section 212(f) of the Immigration and Nationality Act (INA), demands standards to guide the discretion given, if this emergency power is to be retained at all. And we ourselves would balance a better-defined exclusion power with a delegated authority to admit on a large-scale basis, so that the president’s suite of crisis management tools include not only those that allow the prevention of threats but also reflect the humanitarian imperative to shelter, consistent with longstanding U.S. leadership and international law obligations.

As Espiritu also points out, the Trump administration’s public charge rule offers a good example of a delegation whose effect the executive has the power to determine – it can be rendered toothless or exacting as a tool of exclusion. The continued, undefined persistence of the concept of public charge in the Code is an example of how the INA amounts to a mix of old and new priorities layered on top of each other that do not form a coherent theory for immigration. A thorough rethinking of the system would comb through the Code to find exploitable and malleable features such as this one, with a view to substantially narrowing their reach or even eliminating them altogether.

A New Politics

At the end of our book, we offer a distinct vision for immigration reform that moves past the enforcement logic of the current system. Many of the contributions to this series also seek to reframe how we should understand both migration as a phenomenon and the way immigrants can and should be incorporated into the body politic.

Alan Bersin expressly reminds us how interconnected immigration remains with foreign policy, and his post is in the tradition of trying to imagine American immigration law as part of the nation’s integration with the rest of the world – a vision under serious strain but whose revival would in fact resolve many of the complications of the current system by de-emphasizing the border itself, which in turn would diminish the pressure for its fortification.

Many of the contributions foreground humanitarianism, elevating in their accounts the human experiences of cruelty and stress above the legal formalities of status and abstract theories of deterrence. Jawetz and Schlanger both call for a different concept of enforcement, where the tools are distinct, more humane, restorative, even. These are not so much calls to abolish ICE or enforcement altogether, but rather to make it actually possible for people to come into compliance with the law without removing them or subjecting them to trauma in the process.

Implicit in these reformulations is acceptance of the risk of under-deterrence or non-compliance as the price of humanity – and a recognition that current theories of enforcement that emphasize deterrence do not reflect a reality in which compliance with the law is functionally possible, either for those with deep ties to the country or those fleeing extreme violence and other forms of deprivation. Implicit also in these propositions is an acceptance of the need for enforcement once its terms have been made more reasonable and opened up for continual adaptation through inclusion and not just expulsion.

Contributors to this series seem to have adopted this approach at least in part as an attempt to answer rule of law narratives by joining them. These arguments suggest that policies regularizing status serve to re-enforce public faith in the system by ensuring that the formerly unauthorized have complied with the law in a fashion deemed sufficient by enforcement authorities. We acknowledge both the strategic and substantive value of this frame. As we explore in chapter 8 of the book, a responsible approach to governance and reform requires both technical and conceptual experimentation within a legal structure that accepts that immigration laws must exist in some form.  We do not doubt that large-scale failures to comply with the law erode the credibility of the government and the law itself. Non-compliance also enables the public to ignore the interests of human beings who happen to have violated the law.

All of the alternate visions offered by participants in this series draw from resources in our collective history. But the direction of the political debate is not inevitable. And whereas narratives of exclusion, threat, and sovereign and popular control resonate viscerally with swaths of the electorate, especially when paired with nationalistic sentiment, humanitarian appeals can often come across as overly idealistic. We would venture to suggest that this asymmetry in the emotional power of our conflicting narratives helps explain the virtual absence of truly popular movements in favor of a more open immigration policy from our history, even as public opinion polls often reflect majority support for immigration—in today’s world support for Dreamers and legalization and revulsion to family separation.

Collectively, the essays also prompt us to ask a question we explore only indirectly in our book – for what reasons did this system, both punitive and futile, come to be? In the book, we trace the rise of our contingent, probationary model of immigration alongside the development of state capacity to make it effective. Lasting reform away from this enforcement model demands a disruption of the political economy that has produced the border lands as zones of racist discretion, generated the gargantuan detention regime, and made the future of immigration policy depend on zealous advocacy of one kind or another within the executive branch.

Each of the contributions in this series suggests one part of the story of how we got here: the desire for cultural and racial preservation; a legislative and appropriations process that finds it easy and politically effective to fund armaments; ambivalence about the American relationship to the rest of the world, especially the world that physically encroaches on American territory. Whatever the correct explanatory account, we think that generating the political pressure necessary to advance reform depends in part on what each contributor reminds us, in different ways: that truly enforcing our immigration laws as currently designed requires self-defeating cruelty, and that at every level of government, not least at the level of the presidency, we can do better.

Image: Immigration rights activists take part in a rally in front of the US Supreme Court in Washington, DC on November 12, 2019. – The US Supreme Court heard arguments on November 12, 2019 on the fate of the “Dreamers,” an estimated 700,000 people brought to the country illegally as children but allowed to stay and work under a program created by former president Barack Obama. (Photo by MANDEL NGAN/AFP via Getty Images)

 

About the Author(s)

Cristina Rodríguez

Leighton Homer Surbeck Professor of Law at Yale Law School, Former Deputy Assistant Attorney General in the Office of Legal Counsel in the U.S. Department of Justice (2011-2013). Co-author, with Adam B. Cox, of The President and Immigration Law, from Oxford University Press. Follow her on Twitter @cmrodriguez95.

Adam Cox

Robert A. Kindler Professor of Law at NYU School of Law. Co-author, with Cristina Rodríguez, of The President and Immigration Law, from Oxford University Press. Follow him on Twitter @adambcox.