Epilogue

This epilogue explores the justifications for a radical reimagination of the immigration system—for an immigration law and politics that shrinks the domain of enforcement and limits the scope of executive power exercised through coercion. In a reconstituted regime, the Executive should not be sidelined, but rather delegated a different set of authorities. The system of de facto delegation that has driven immigration policymaking for two generations should be brought above board, supplanted by a model of de jure delegation. Doing so would retain a central role for the President in setting immigration policy but would marginalize the enforcement imperative at the heart of the current regime and place presidential immigration law on a footing that more closely resembles other arenas of the modern regulatory state. In order to begin this process, Congress must first drastically decrease the number of people who live under the perpetual threat of enforcement. A reform strategy must therefore begin with a legalization initiative for the current unauthorized population.

Our Shadow Immigration System

This chapter explains how legal and institutional developments in immigration enforcement coincided with the dramatic acceleration of illegal immigration during the final third of the twentieth century. Together, these legal and demographic phenomena gave rise to a massive shadow immigration system that today operates alongside the formal immigration regime. This shadow system has rendered Congress’s intricate, detailed code of immigration rules increasingly less central to defining the content and character of the immigrant population. Instead, the Executive’s enforcement judgments—decisions about whom to target from the pool of deportable immigrants—have taken center stage. Indeed, the rise of the shadow system has effectively delegated vast screening authority to the President and other executive branch officials—authority that has culminated in events as dramatic as President Barack Obama’s Deferred Action for Childhood Arrivals (DACA). The large number of unauthorized immigrants living in the United States today amplifies the role of enforcement discretion and further entrenches the shadow immigration system.

Managing and Manufacturing Crisis

This chapter traces the origins of American refugee policy. Twentieth-century refugee policy provides a powerful example of how presidents have played a leading role in determining which noncitizens should be allowed to enter the United States, and it reflects the dynamism and creativity of executive governance. In the service of foreign affairs and humanitarianism, presidents of this era transformed bureaucratic tools meant to be case management devices, such as the parole power, into instruments for remaking the immigration system by their own lights. Perhaps not surprisingly, the specter of emergency frequently has propelled these presidential initiatives. Wartime labor shortages and sudden refugee crises have given rise to vivid examples of executive unilateralism. But much of the historical use of the parole power fits uncomfortably into an emergency framework: the statutory grant hardly looks like a delegation of emergency authority. The President’s influence over immigration instead has deeper roots. His role has extended far beyond responding rapidly in emergency contexts to exploiting seemingly limited powers to serve an administration’s ongoing foreign and domestic policy objectives.

The Diplomatic Origins of Immigration Law

This chapter explores the origins of immigration law in the United States. Until the late nineteenth century Congress created few rules to govern immigration, beyond setting a uniform rule for naturalization. Instead, presidents facilitated immigration through the negotiation of commercial treaties that ensured reciprocal protections for foreign nationals in the United States and Americans abroad—first with nations in Europe, and later with China during the California Gold Rush. State and local governments simultaneously acted as de facto regulators through the use of their inspection and taxation powers. In the 1880s, however, circumstances changed. In response to growing resentment of Chinese immigration on the West Coast and pressure from eastern seaboard states struggling to manage immigrant flows, Congress finally enacted significant legislation, passing the Chinese Exclusion Acts and beginning the American experiment with immigration restriction. By the close of the twentieth century, foreign affairs and national defense were no longer necessary contexts for the assertion of broad presidential leadership or power. Presidents continued to rely on their foreign affairs powers to significant effect through World War II, and diplomacy remains relevant to immigration policy today. But the rise of the administrative state and the President’s role in steering an ever-expanding bureaucracy ultimately became the preeminent source of executive authority to control immigration law.

Wither Legislative Supremacy?

This chapter evaluates a central critique of the President’s power to make policy through enforcement, embodied in Justice Anthony Kennedy’s exclamation that President Obama’s relief initiatives would have turned the government “upside down.” This worry that the Executive might transform its authority to enforce the law into a legislative power that belongs to Congress is misplaced. The history of presidential immigration law underscores why. After demonstrating the impossibility of constraining enforcement judgments through a lawyerly search through the immigration code for congressional priorities, the chapter then explains and defends a two-principals model of decision-making, using the terms of contemporary separation of powers theory. The governance in which the Executive engages as a co-principal in the formulation of immigration policy provides a vital complement to the legislature, not only by checking legislative excess and adapting the legal regime in response to the effects of the law on the ground, but also by expanding possibilities for democratic engagement and policymaking within an otherwise sluggish system.

Introduction

This introductory chapter identifies who controls immigration law and how. Many recent immigration controversies in the United States have been cast as power struggles between the political branches. In nearly every clash, the President’s detractors invoke the same supposed constitutional wisdom: that control over immigration belongs in the hands of Congress. When President Donald Trump, just days after his inauguration, signed an Executive Order banning immigration from six predominantly Muslim countries, critics immediately attacked the action as tyrannical, discriminatory, and a violation of the immigration statutes enacted by Congress. Similarly, when President Barack Obama announced that he would shield young unauthorized immigrants from deportation, the backlash was swift. Commentators, members of Congress, and even his own immigration enforcement agents pilloried him for usurping the constitutional authority of Congress. The modern-day battles of the Trump and Obama eras reflect a deep historical truth about the structure of immigration policymaking: that the President stands at its center. This book tells the story of how the President became the immigration policymaker-in-chief. Today, the President’s extraordinary power over immigration policy grows out of his utterly ordinary constitutional duty to enforce the law. The logic and tools of enforcement therefore define contemporary immigration policy, empowering the President and executive officials to shape the meaning of immigration law.

Executive Governance Through Enforcement

chapter grapples with the risks associated with executive governance through enforcement, tracing them to core and undisputed executive powers whose reach has been magnified in immigration law by the emergence of the shadow system. Two interrelated features of executive governance should prompt vigilance. First, when executive branch officials pursue a policy agenda through their management of the enforcement bureaucracy, discretionary decision-making drives their choices about how to threaten or wield force, as well as offer forbearance. It is natural to worry that this discretion will lead to the lawless, arbitrary exercise of power. Second, discretionary decision-making processes are often opaque. This feature exacerbates the possibility of abuse and makes it difficult to hold government power accountable. After defining these risks, the chapter then focuses on how the domain of de facto delegation can be structured to preserve the virtues of executive governance while promoting rule of law values. It offers a qualified defense of the centralized, political control of enforcement discretion as a means of disciplining the Executive’s awesome power.

Controlling the Enforcement Bureaucracy

This chapter demonstrates how the President’s control over immigration policy depends intimately on the structure and culture of the enforcement bureaucracy. These features of the bureaucracy in turn shape presidential policymaking. In particular, low-level executive branch officials play a crucial role in effectuating the enforcement power, as they are the ones responsible for the daily exercise of discretion within the system. To see how these dynamics have played out within the Executive Branch, the chapter studies the Obama administration’s efforts to centralize enforcement discretion in order to control line-level agents and contrasts those efforts with the early decisions of the Trump administration. It focuses on the attempts by political officials to tame the discretion of Immigration and Customs Enforcement (ICE) agents. President Obama’s efforts to discipline the decision-making of these line officials culminated in his two signature initiatives designed to insulate upward of five million unauthorized immigrants from removal. The bureaucratic reality of presidential immigration law has been on display equally during President Trump’s administration, including through efforts to centralize control over discretion where doing so has proven necessary to advancing the President’s policy agenda.

The Deportation State

This chapter examines the legal and bureaucratic transformations that gave rise to the deportation power in its contemporary form, providing a better understanding of how it operates as a significant source of presidential power. The story begins in the late nineteenth century, when Congress effectively created the legal authority and bureaucratic capacity the Executive needed to conduct immigration enforcement within the nation’s interior. Contrary to conventional wisdom, the rise of federal immigration legislation during this period did not mark a sharp break with an earlier, mythical period when the United States welcomed all comers. But it was not until this time that Congress began building the regulatory machinery for selecting immigrants that would turn the federal government into a potent force for controlling immigration. For the first time since the infamous Alien and Sedition Acts, Congress enacted laws making resident noncitizens deportable. Just as important, Congress began constructing institutions that would enable the federal government to turn the growing law of deportation into a reality on the ground. Today, deportation occupies much of the field of federal law enforcement. Indeed, the government deports hundreds of thousands of immigrants every year—far more people than are incarcerated in the entire federal prison system. In this chapter, we explain how this reality came to be.

Sidelining the States

This chapter considers how federalism has played an important role in immigration enforcement and challenged presidents of both parties, thus helping to structure national debates over the place of immigrants in American society. The cooperation of state and local officials turns out to be critical to the project of locating and deporting immigration violators. Today, local officials work as formal and informal partners to the federal government, serve as sources of information and bureaucratic expertise, and provide personnel essential to federal enforcement efforts. The integration of federal and state officials into a single immigration enforcement bureaucracy has expanded and complicated the President’s power over immigration law. Particularly when immigration federalism has taken a partisan turn, powerful incentives have arisen for the President to co-opt, crush, or otherwise control local initiatives in order to push immigration policy in the administration’s preferred direction. Both the Obama and Trump eras provide vivid examples of this centralizing tendency. Presidential efforts to consolidate power in these circumstances has never been complete, however. Because the Executive Branch cannot escape its bureaucratic reliance on local institutions, the delegation of meaningful power to nonfederal officials remains part of the system whether presidential administrations like it or not.