The Volokh Conspiracy
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The Yale Journal on Regulation has an online symposium on Adam Cox and Cristina Rodriguez's excellent recent book, The President and Immigration Law. Contributors include a variety of constitutional law and immigration scholars. There are already contributions posted by Zachary Price, Jessica Bulman-Pozen, Shalini Bargava Ray, and myself. Jill Family and David Rubenstein have posted an Introduction to the symposium, which provides an overview of Cox and Rodriguez's book, and of the various commentaries in the symposium.
Over the next few days, the Journal on Regulation will post additional contributions by Daniel Farber and Eisha Jain. Then, Cox and Rodriguez will post a response to their commentators and critics.
Here is the publisher's description of the book:
Who controls American immigration policy? The biggest immigration controversies of the last decade have all involved policies produced by the President policies such as President Obama's decision to protect Dreamers from deportation and President Trump's proclamation banning immigrants from several majority-Muslim nations. While critics of these policies have been separated by a vast ideological chasm, their broadsides have embodied the same widely shared belief: that Congress, not the President, ought to dictate who may come to the United States and who will be forced to leave.
This belief is a myth. In The President and Immigration Law, Adam B. Cox and Cristina M. Rodriguez chronicle the untold story of how, over the course of two centuries, the President became our immigration policymaker-in-chief. Diving deep into the history of American immigration policy from founding-era disputes over deporting sympathizers with France to contemporary debates about asylum-seekers at the Southern border they show how migration crises, real or imagined, have empowered presidents. Far more importantly, they also uncover how the Executive's ordinary power to decide when to enforce the law, and against whom, has become an extraordinarily powerful vehicle for making immigration policy.
This pathbreaking account helps us understand how the United States has come to run an enormous shadow immigration system-one in which nearly half of all noncitizens in the country are living in violation of the law. It also provides a blueprint for reform, one that accepts rather than laments the role the President plays in shaping the national community, while also outlining strategies to curb the abuse of law enforcement authority in immigration and beyond.
Here is an excerpt from my contribution to the symposium:
Adam Cox and Cristina Rodríguez have written what is likely to become the definitive work on presidential power over immigration. As they describe, the executive branch has come to wield vast discretionary authority over immigration policy, even though nothing in the text or original meaning of the Constitution grants it such authority….
Their diagnosis of the problem is sound, and so are many of their proposals for reform. But they understate the importance of eliminating constitutional double standards in immigration law. In addition, the issues they highlight cannot be properly addressed unless we make it easier for potential immigrants to enter the US in the first place, not just constrain deportation after the fact….
Some of this discretionary power is just one part of a broader problem with our legal system. There are far more laws than any administration can possibly enforce, and far more lawbreakers than can ever be caught and prosecuted. As a result, a large majority of adult Americans have violated federal criminal law (to say nothing of state law) at some point in their lives, and could potentially be prosecuted . Undocumented immigrants are far from the only people who remain free only because of resource constraints and the exercise of executive enforcement discretion. But the immigration situation is particularly severe, because of the grave consequences of deportation, and the weakness of due process protections in the immigration enforcement system…..
Cox and Rodríguez underestimate the importance of eliminating constitutional double standards under which immigration policy has largely been exempted from constitutional constraints that apply to nearly all other government policies….
Cox and Rodríguez contend that Trump v. Hawaii is an aberration and a "dramatic departure from the past." In some respects, that is true, particularly in so far as it defends the immigration double standard much more blatantly than any other recent decision. But, unfortunately, the ruling is part of a much broader pattern in which both courts and executive branch officials refuse to apply rigorous constitutional constraints to immigration policy.
Among other things, immigration detention and deportation are not subject to anything like the same due process constraints as other severe deprivations of liberty. This results in such horrors as toddlers "representing" themselves in deportation proceedings, because there is no right to the provision of counsel to indigent migrants facing deportation…. Weak constitutional standards play a major role in the deportation and detention state that Cox and Rodríguez refer to as the "shadow system" of immigration law.
Ending such double standards would bring immigration policy more in line with the text and original meaning of the Constitution. It also would curtail some of the worst aspects of the immigration system – including some of the worst abuses of the shadow system….
But, ultimately, broad presidential discretion to exclude migrants can only be alleviated by making it easier for them to enter legally in the first place…..
If we restricted interstate movement in the same way as immigration, there would be massive enforcement discretion and associated abuses of power with respect to the latter, as well (as indeed occurred when state governments had greater power to exclude internal migrants in the nineteenth century)….
[T]here are many ways to make incremental progress by liberalizing immigration policy at the margin. Those who seek to reduce deportation, civil liberties violations, and excessive executive discretion associated with immigration policies would do well to focus on making it easier to make it easier for immigrants to legally enter the United States in the first place.
I discuss some of the issues raised in my contribution to the symposium in greater detail in my own recent book Free to Move: Foot Voting, Migration and Political Freedom.
I would like to thank the editors of the symposium for opportunity to contribute, and Adam and Cristina for writing an outstanding book!