Immigration

Yale Journal on Regulation Symposium on Adam Cox and Cristina Rodriguez's book "The President and Immigration Law"

Contributors include a variety of legal scholars, including, Jessica Bulman-Pozen, Dan Farber, and myself, among others.

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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!

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  1. “one that accepts rather than laments the role the President plays in shaping the national community”

    Yes, just accept that we are not a Constitutional Republic. Our government is not governed by any constitution nor does it have the consent of the governed in any reasonable sense. It’s just a state of force.

    “while also outlining strategies to curb the abuse of law enforcement authority in immigration and beyond.”

    I.e., strategies to entrench and further de facto open borders.

    “Congress, not the President, ought to dictate who may come to the United States and who will be forced to leave.”

    Originally, even Congress had no authority granted to them to regulate immigration. It would have been left to the States. Naturalization isn’t the same thing as immigration. This is true, even if State control of immigration today would be even more “open borders.”

    1. Did someone say, Yale? Dismissed. Hate America garbage. It should be defunded and shut down.

    2. Originally, even Congress had no authority granted to them to regulate immigration. It would have been left to the States.

      That claim is belied by Article I, Section 9, Paragraph 1.

      1. That section only limits Congress’ authority to regulate the migration or importation of persons — albeit for a limited time period, which admittedly seems to create an implication that it could otherwise do so. But such logic does not necessarily follow, as those who opposed the bill of rights pointed out — they (correctly) feared it would create an implication that the federal government could do anything not expressly prohibited. Nonetheless, it does amount to a suggestion that Congress would have this power granted elsewhere. The elsewhere would be the commerce clause. Do you think the power to regulate immigration falls here?

        1. The elsewhere would be the commerce clause. Do you think the power to regulate immigration falls here?

          I do. It should be noted that the text of the provision I cited seems to imply at least a concurrent power of the states to govern immigration.

          1. “It should be noted that the text of the provision I cited seems to imply at least a concurrent power of the states to govern immigration.”

            Good point. I understand some folks suppose that limiting interstate migration into their state would be permissible under the original meaning of the Constitution.

    3. Ilya suddenly is a lot more open minded to presidential discretion over immigration. Surprise Surprise.

      1. Ilya lives on the Washington Beltway. Nothing he says has the slightest validity because of his lawyer rent seeking culture. Every claim is to defraud and to oppress the public. He is not capable of making a valid point.

  2. While the authors may well be right that accepting Presidential control over immigration is politically expedient and practically difficult to avoid, and that immigrants’ limited legal status and legal remedies tends to increase the Executive’s advantage, I wouldn’t say that means a preference for greater Congressional control is merely a myth.

    Congress could, if it wanted to, set standards, provide additional legal avenues, create greater oversight, open more proceedings and facilities to the public, and take a number of other steps to ensure that its will is carried out and the Executive Branch’s actions are subjected to judicial and public scrutiny.

    After all, animals have no rights, yet various environmental laws subject the administration’s action to close public scrutiny and frequent judicial intervention.

    And while the Supreme Court has repeatedly held that immigrants basically don’t have constitutional rights to any particular process or fairness in deciding whether to admit or expel them, nothing prevents Congress from creating statutory rights, statutory process, statutory standards.

    The biggest reason why the situation is what it is is because Congress wanted it that way, or at least allowed it to happen. Much of the President’s extraordinary discretion is explicitly stated right in the laws Congress passed. If Congress wants to change things, there is a great deal it could do.

  3. While critics of these policies have been separated by a vast ideological chasm, . . .

    If anyone can explain that ideolgogical divide to me, I will be better informed than I am now. My impression is that ideology has little or nothing to do with it.

    Republicans oppose immigration because they worry that history shows immigrant communities mostly vote against Republicans as soon as they can. There is also the angle that if you make immigration hard, or basically illegal, you can then set up schemes to let would-be field hands into the country, and use the leverage the law affords to treat them as serfs.

    Democrats, on the other hand favor liberal immigration because they think Republicans are right about the voting. Democrats extra wrinkle is that they have to get votes somewhere. Identity politics among already-Americans can only do so much. Democrats threw blue collar, pro-labor policies overboard to clear the way to get into the big-donor contest with Republicans. Immigrants seem to be their favored group to replace the millions of blue collar voters the Democrats spurned beginning even before the Clinton administration.

    What any of that has to do with ideology is beyond me.

    1. Bingo—it’s tribalism. So that is why in 2000 Republicans wanted the illegal alien Elian Gonzales to remain with his American kidnappers…while Democrats wanted the nutty kidnappers to obey the family court order and return Elian to his father.

      Furthermore, President Obama rescinded “wet feet, dry feet” in large part because it was a “carrot” inducing Cubans to take reckless sea crossings that often ended in death. So that means AOC’s and the Squad’s rhetoric with respect to the border crisis was extremely irresponsible and, in fact, they have blood on their hands for inducing migrants to engage in reckless river and desert crossings.

      1. “American kidnappers”

        BS. It was his mom’s family. She died trying to get him to America.

        “President Obama rescinded “wet feet, dry feet”

        Because he wanted to be cozy with Castro.

        1. Correct, Elian’s mother was extremely irresponsible and reckless. This is a legal blog—resisting a family court order = kidnapping. But congratulations—you are one step away from a child sex trafficker!

    2. I think you are largely correct. But there is also an ideological component in that many influential people and organizations fervently support globalism/imperialism and a one-world government, along with high degrees of socialism and government control of many aspects of society. The elimination of borders is key to that agenda.

      Strobe Talbott, who was later Deputy SOS under Clinton for 7 years, wrote in 1992: “within the next hundred years . . . nationhood as we know it will be obsolete; all states will recognize a single, global authority. A phrase briefly fashionable in the mid-20th century — “citizen of the world” — will have assumed real meaning by the end of the 21st.”

      And as one Hillary R. Clinton told bankers in Brazil in 2013, ““My dream is a hemispheric common market, with open trade and open borders..”

      1. Yep, the Bush family was instrumental in opening up China and getting China in the WTO and shipping millions of good American manufacturing jobs to China. So we know in 2003 Neal Bush was being funneled millions of dollars by a Chinese semiconductor company while knowing nothing about semiconductors. Lastly we know the primary beneficiary of a stable Iraq producing cheap oil was supposed to be China and its expanding middle class.

        Obviously Cubans in Florida have made 2 Bushes president and 1 Bush the Florida governor…so we know why they were encouraging Cubans to make reckless sea crossings so they could vote for Bushes. With respect to the southern border the heir to the Bush political legacy is a Mexican…so obviously the Bush family believes turning Mexicans into Americans will pay off big for the Bush family.

    3. You’ll need to differentiate between Republican voters and Republican congress folks. (R) voters oppose illegal immigration for a variety of reasons, and some oppose legal immigration for the same reasons. (R) congress folks pretend to oppose illegal immigration when they think the Repub voters are watching. Few if any (R) congress folks have any interest in limiting legal immigration.

  4. Canada has laws that give preferential treatment to French speaking immigrants. Giving certain foreigners preferential treatment means those not in the group are being discriminated against.

    I am not religious…but why would America want more Muslim immigrants?? In America adults are free to choose whatever religion they want and very few progressives convert to Islam. Query—what does it say about a religion when Barack Obama’s father’s family was Muslim and his stepfather was Muslim…but as an adult Obama very publicly rejected Islam and instead chose to convert to Christianity?? Furthermore, if AOC thinks it’s so great that Muslim women are getting elected to Congress…why wouldn’t she simply convert to Islam and add another Muslim woman to Congress?? The reason AOC doesn’t convert to Islam means she believes Islam is an inferior religion…why would America want more people that believe in an inferior religion??

    1. Obama’s religious conversion was likely a political decision, not a moral one.

      1. Maybe…but he very publicly rejected Islam even if he didn’t really believe Jesus is the son of God. So Muslims hold people like Obama in the lowest esteem…and Democrats wanted more people that viewed President Obama as an infidel to come to our country.

  5. So Somin wants non-citizens who enter into this country illegally…and perhaps non-citizens who are not even in this country…to have the same constitutional protections as citizens. So everyone in the world has the right to due process and free legal counsel at immigration hearings.

    But let’s assume that he limits these protections to resident non-citizens. Somin wants to make it easier for immigrants to enter this country. Then once they are here they get the full protection of our laws.

    Why not just make everyone in the world a U.S. citizen? What could possibly go wrong?

  6. Ah, so Ilya returns to immigration.

    Any comments on the current “new” immigration policy by President Biden? The one which has thousands of illegal children crowded into shelters (“cages”) at greater than 700% capacity, in situations which easily spread COVID around?

    1. A million people will come here to underbid black people, and everyone else who works for a living. Enjoy being replaced, my Dem friends. I will enjoy seeing these million people attend local Dem schools, fill local ER’s, and vote their interests in Dem primaries, drive as they do in their home countries on your local streets, bring their great, diverse cultures to your Dem jurisdictions.

  7. Hi, Yale America Haters. You need to recognize the Indian law license. I want 100000 Indian law professors to come here, to offer to teach law for a big raise to $25000 a year.

  8. Immigration, illegal and legal, suppressed and stagnated wages for decades, for the unjust enrichment of the billionaires.

    Trump suppressed immigration. He caused a labor shortage, and impending serious wage pressure. The lowest two tenth percentiles had raised of 9% year over year. That is why Trump had to go. The billionaires used their media and their Dem Party to hype a flu like virus, and to shut down the economy. That destroyed the market and employment. These achievement guaranteed the re-election of Trump. He had to go, so these billionaires took down our nation.

    The lawyer profession did nothing to save us for their lawlessness. They deferred to religion in trivial cases. Religion is yet another scam that is immunized by the lawyer written constitution. Pay us now and be rewarded after your death. Greatest scam ever.

    1. They also waged a strenuous and ultimately successful campaign to delay the vaccines until just after Nov 3, for political purposes.

      1. You bet. The coincidences are just too much, and crimes, because people died needlessly.

        1. No need to rely on coincidences.

          You can read about their efforts. For example, in a piece from MIT Technology review called:

          “One doctor’s campaign to stop a covid-19 vaccine being rushed through before Election Day

          How heart doctor Eric Topol used his social-media account to kill off Trump’s October surprise.”

          That headline makes it sound much more frivolous than what actually happened, if you read the article.

          Note that they will conveniently claim they were only trying to prevent the development of a vaccine from being used for political purposes, when really they sought the delay for political purposes.

          1. Stunning article. Killed thousands. Posted it to my Parler account. Thank you.

          2. From the article: If Trump badgered the US Food and Drug Administration into prematurely releasing a vaccine that wasn’t effective, or even caused harm, it could shake the public’s trust in any covid-19 vaccine. And if we are to achieve wide immunity against SARS-CoV-2, we’ll need to vaccinate more people than the number that get flu shots each year. Releasing a vaccine that people are afraid of could do more harm than good.

            But you’ve got your conspiracy theory, based on sekret motives and a headline you’re taking out of context, so what more do you need?

            You and David can just continue to crazy at each other.

  9. The biggest reason why the situation is what it is is because Congress wanted it that way, or at least allowed it to happen. Much of the President’s extraordinary discretion is explicitly stated right in the laws Congress passed. If Congress wants to change things, there is a great deal it could do.

    https://ipogmp.in/covid-diagnostic-stocks-india/

  10. While the authors may well be right that accepting Presidential control over immigration is politically expedient and practically difficult to avoid, and that immigrants’ limited legal status and legal remedies tends to increase the Executive’s advantage, I wouldn’t say that means a preference for greater Congressional control is merely a myth.

    https://ipogmp.in/oxygen-cylinder-manufacturing-listed-companies/

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