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Adam Cox and Cristina Rodriguez Respond to Critics and Commentators on their Book "The President and Immigration Law"

This is the conclusion of the Yale Journal on Regulation symposium about the book.


The Yale Journal on Regulation  online symposium on Adam Cox and Cristina Rodriguez's important new book, The President and Immigration Law, has now concluded with the authors' response to the commentators and critics.

All of the contributions can be accessed here. My own essay praises the book and accepts much of the author's analysis of the growth of executive power over immigration and its dangers. But, in assessing possible solutions for the problems they identify, I argue that the authors undervalue the importance of strengthening constitutional constraints on executive power, and making it easier for migrants to enter the United States legally.

In their thoughtful response, Cox and Rodriguez partly agree with my suggestions, but emphasize that neither the full elimination of constitutional double standards on immigration policy nor the adoption of a presumption of freedom of movement across national borders are likely to be fully realized, anytime soon, if ever.

I agree these ideals are unlikely to be fully realized anytime soon, and said as much in my initial contribution. But I also pointed out that there is a great deal of room for incremental progress on both fronts. Cox and Rodriguez's own reform proposal of legalizing most of the current undocumented immigrant population and severely curbing detention and deportation is also unlikely to be fully implemented in the near future. For reasons noted in my contribution, strengthening judicial review and cutting back barriers to legal migration are essential components of any reform agenda, whether incremental or radical.

Indeed, failure to pursue the the former might even undercut many of the beneficial effects of the latter. If detention and deportation are more tightly constrained, a White House hostile to immigration would have incentives to double down on using its discretionary authority to try to keep out migrants in the first place. If so, there may be little net reduction in executive power in this field and its undermining of the rule of law. For potential migrants, being barred to begin with can be just as bad or (in some cases) even worse than being deported after entry.

I previously also commented on Prof. Dan Farber's outstanding contribution to the symposium, which focuses on the ways in which the current executive-dominated immigration regime undermines the rule of law.

In conclusion, I once again commend the authors on their outstanding book. The debate over these issues will surely continue.

NEXT: Religion and Failure to Provide Medical Care for Dying Children

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  1. Ilya, what you fail to fathom is that Americans are saying "No Mas!"

    It's just like a century ago, we are feeling like we are living in a foreign country and immigration is largely going to end for the next 40-60 years, whether you like it or not.

    We have too many people who aren't Americans -- and we need to absorb them before the deluge continues.

    1. Don't forget "Operation Wetback."

    2. Hi, Ilya. I am not reading your Chinese Commie swill trying to destroy our nation by making us a permanent one party nation under their agents, the Democrat Party, and its owners, the tech billionaires.

      One question. Do any of the scumbag lawyers support letting in 1 million Indian lawyers and recognizing the Indian law license? That way they can replace all the law professors, and fulfill their dream of making $25000 a year.

      1. On a more serious note, if Florida breaks the ABA monopoly and other red states follow suit, we could well see a related breach of the law school monopoly.

        1. Hi, Doctor. You had a great intellect. Then, you attended law school, and you know what happened. I will try to explain it to you, so even someone of your ilk can understand. Trump's America First agenda caused a massive labor shortage. That began to put great pressure on wages. For example, blacks at the bottom 10% of earners got raises of 9% year over year. That cut into the profits of the billionaires, and could not be tolerated. They got rid of Trump with a fake pandemic.

          Now, the President of the tech billionaires is having an open border policy, and unemployment is skyrocketing for poor people. The profit of the tech billionaires has been restored. They increased their wealth $1.7 trillion. In China, they scored $2.2 trillion. Millions of poor people starved from the lockdown in the greatest fraud heist and mass murder in history. Can you understand what I said? It was written at the 6th grade level for you.

      2. Excellent proposal.

        While we're promoting immigration, I want 250,000 Indian TEACHERS per year!! After all, as with the tech workers they've conned us into accepting, "They speak English and are well-educated.". (Even though both qualities are touted more optimistically than experience confirms.)

        Truly, that would be considered a wonderful thing by pro-immigration libertarians, would it not? Matter of fact, I wonder how long it would take India to set up some J-schools and turn out 100k journalists? I'm guessing about three months, graduation ceremonies included.

        1. Those teachers would love to make $12000 a year, and would accept classes of 50 students. Discipline would improve, since teachers carry sticks in class. Schools taxes can drop a lot. They do a great job. They have more honor students in India than we have children.

    3. There are too many of them to stop it. At this point, it won't stop without a civil war, which will be a race war.

    4. Ed, you don't actually speak for Americans. You're just a frustrated Internet dude with perisomal views you project onto the country.

      You're from Massachusetts, chief.

      1. Ed, you don’t actually speak for Americans.

        Offering an assessment of the dominant mood of the U.S. electorate on a given topic does not constitute "speaking for Americans". But you know that and are just reinforcing your position as the VC's most prolific source of straw men.

  2. I expect the comments to demonstrate that the Volokh Conspiracy should be considered the official legal blog of the Gosar-Gohmert-Greene Freedom First Caucus.

    1. Sorry, America First Caucus.

      Defending conservative, Anglo-Saxon America against all enemies, brown, red, black, or yellow.

      1. Hi, Arthur. You would make a good high school History teacher. You should start taking Education courses. You will be replaced.

    2. Kirkland has now become a white supremacist. Bigoted, racist, hateful, and full of spite for everyone.

      1. The Democrat Artie hates America more than anything else.

        1. Artie was banned by the Volokh Conspiracy for poking fun at conservatives a bit too deftly for the proprietor's taste.

          I am Arthur.

          1. You cannot be banned here at Reason. Your comment may be removed. Has that ever happened at Reason?

          2. "too deftly"

            Massive ego. Poor Artie. Too bad no one else thinks so highly of you.

            1. Artie Ray was perceived to be enough threat to this blog's stated purpose -- making conservative and Republican positions more palatable beyond the clingerverse -- that he was banned.

              1. As the recipient of the email, you're free to share it with us.

  3. If history shows one thing, it’s that the constitutional amendment process is not cery amenable to making “incremental progress” on an issue. You either amend the constitution or you don’t. Multiple amendments on the same subject have been uncommon. Cases include race (first slavery abolished, then citizenship and equal protection, then voting rights) abd prohibition (although there, one amendment repealed another.)

    But incremental constitutional amendments have not happened in a long time. Once one is passed, the issue is unlikely to be revisited.

  4. And as previously pointed out, the constitutional changes Professor Somin wants would require reversing the core holding not just of various extraterritorial alien cases, but Roe v. Wade, which is based on the identical principal, that “person” as used in the Bill of Rights is limited in application to those who have been born and are either (a) on US territory or (b) US citizens.

    The Court has repeatedly rejected extraterritorial application for the same reasons it has rejected prenatal application. in both cases, it has held that that sovereign autonomy includes a freedom to choose whom to admit into ones life.

    Opponents of Roe have argued that government can restrict sovereign/autonomous freedom of choice based on moral considerstions. But it is generally agreed that the constitution itself does no such thing. To the contrary, it acts if at all entirely in the opposite direction, imposing limits on the extent to which public conceptions of morality may serve as a basis for limiting sovereign/autonomous freedom of choice.

    Prople are free to believe, as a matter of personal religious belief, that the life of an extraterritorial alien is worth more than the life of a fetus. But the constitution imposes no such belief. To the extent it refers to the law of nations, it involves solely relationships with foreign governments, not individuals. The United States is free to act as brutally as it wants to. It can act in accordance with traditional conceptions of morality if it wants. But nothing requires it to.

    The constitutional regime is the exact opposite of what Professor Somin would like it to be. Foreign nations are primary; individuals as such, practically nonexistent. They can’t even sue in federal court except to the extent they are part of a recognized nation.

  5. They criticize Presidential discretion because Trump limited immigration. No criticism of Biden's Open Border policy.

    These lawyers do not understand the reason Trump was elected. I see no point in explaining, since they are trying to save their jobs and way of life.

  6. "...and making it easier for migrants to enter the United States legally."

    The Trumpism of the GOP has made it political suicide for anyone running for office in a conservative jurisdiction to suggest such a thing. The "America First" Caucus may have imploded as fast as it was proposed, but that is the first ray of hope in many years that nativist, anti-immigrant fervor by the right can be fought against effectively.

    The right is continuing to defend Tucker Carlson explicitly supporting the "Great Replacement" conspiracy theory, while absurdly trying to frame it as a "voting rights" issue rather than blatant racism. I don't see that single ray of hope being nearly enough to bring the GOP back around to supporting immigration policy that is based on meeting the economic needs of the country while respecting human rights. It is going to be more "Build the Wall" and 'keep out the dirty immigrants from "shithole" countries' from them for the foreseeable future.

    1. You parrot the leftist line well. But there has always been a nativist majority in this country. No amount of elitist nonsense about “racism” is going to change that. The majority want to see some moratorium on immigration, at least to the point where you must do it legally.

      It’s African Americans who lose the most when cheap, foreign labor is allowed to enter the country. So the racism cop out is just that. Try again.

      1. Since Biden, Blacks are experiencing huge surges in murder, unemployment, and poverty. Thanks, to the Democrat lawyer, they will experience surges in ethnic cleansing. The shithole people are not being moved into either Ilya's or into Artie's neighborhood.

      2. White folks arguing on behalf of black people sure is a bit problematic.

        1. Hi, Sar. I identify as black. Do you have a problem with that?

        2. "White folks arguing on behalf of black people sure is a bit problematic."

          Oh goody, I can't wait to point out every time you ignore this newfound principle.

        3. White folks arguing on behalf of black people sure is a bit problematic.

          Then why do you do it so much?

      3. "But there has always been a nativist majority in this country."

        Americans have observed successive waves of ignorance and intolerance -- customarily related to race, religion, ethnicity, or perceived economic pressures -- throughout our history. Those targeted by nativist voices of backwardness and bigotry have included Italians, Jews, Blacks, Asians, Catholics, gays, the Irish, agnostics, women, Hispanics, Muslims, atheists, eastern Europeans, other Asians, other Hispanics -- most of America, at one time or another.

        What makes America great is that our bigots do not win, not over time. Our lesser voices are overcome by our better citizens, by inclusiveness, and reason, every time. And this latest batch of bigots is nothing special, its reliance on the charms, insights, and integrity of Marjorie Taylor Greene, Ted Cruz, Donald Trump, and the Heritage-Federalist-Olin-Republican-Stanton-Bradley-Koch-Scaife coalition notwithstanding.

        Carry on, clingers. But, as has become our tradition, solely so far and so long as your betters permit.

        1. I've found the worst bigots and intolerant folks were fellow immigrants not Americans who got here before my grandparents who immigrated from Italy. Hate to go there but look at those pushing cultural marxisms and neocon wars...not old WASPs for sure.

    2. The economic needs of this country regarding immigration are "none." We don't need more unskilled labor, given automation and a decline in manufacturing.

      The great replacement is not a conspiracy theory. It's fact, and the left gloats about it constantly, using references to "Demographics are destiny"

  7. While not strictly conforming to the definitions of macroeconomics and microeconomics this may help explain some of the feelings. In terms of macro stuff allowing unfettered migration across sovereign would likely increase the macro economy. On the other hand it would likely decrease lots of micro stuff.

    In a previous discussion on this I noted I have both an MS and JD and a BS along with far above average computer skill and a strong work ethic which allows me to make a good income. I was consulting on one job where a guy from India was reaching the end of his B1 and was complaining he had another job offering in Boston (as compared to Tallahassee, no big shock there) but could not take it due to current work rules and the job would likely go to an American citizen less capable. When I said I understood this from both points of view and thought the American citizen had the best argument given it was his country. One person replied my position was 'you got yours and don't want the Indian guy to get his'. This was back in early 1990.

    The problem with Ilya's position is America simply can not absorb all the peeps who want to come to America to work. To make matters worse the majority of those who want, or are, coming are not like the guy from India. They don't speak English, often have less than basic education, lack tec skills, and have dependents that will require public aid. Bottom line is they 'get theirs at the expense of American citizens'.

    1. People tend to forget what caused the Boston Massacre in 1770 -- it was the British troops being allowed to work when they were off-duty and taking jobs away from Americans because they could work for less.

      It's *because* their dependents receive public aid (as do they) that immigrants can work for less and undercut Americans, much as the British soldiers could because their food & housing needs were being met by the Crown.

      1. Repeating something in multiple threads won't make it more true.

        1. Or less true, either.

          The Boston Massacre

          "Hostility toward the soldiers escalated. Not only did the colonists object to their presence, but now "the Redcoats" or "lobsterbacks," as the soldiers were commonly known, were taking jobs from Boston's workers. Low wages had led many soldiers to secure part-time jobs in their off-duty hours. They further antagonized many Bostonians by dating local women."

          1. Yes, there was tension in Boston over the presence of the soldiers. There were lots of causes of those tensions. Misplaced fears of taking-our-jobs may have been one of those causes. That does not mean that this "caused the Boston Massacre," which is the claim Dr. Ed made.

            1. It appears at least to have been one of the causes, though certainly not the most proximate.

              At the very least, Dr. Ed isn't pulling this out of his rear, it's legit history.

    2. The problem with Ilya’s position is America simply can not absorb all the peeps who want to come to America to work.

      Sure it can.

      1. The geographic area can. The country can't.

  8. With immigration, I fear a missing bit of understanding is that the state, country, sovereign can and does change at the whim of it's citizens, either peacefully or not. The question of immigration, then, includes will these new people we are inviting in to become 'us' change it for the better? And by unilaterally and precipitously and without well thought out processes, adding a whole bunch of new 'us' leads to thing like the first and second Reconstruction, Jim Crow and a 145 years of still unhealed wounds AFTER ending slavery.

    Just adding 12-40 million new citizens who arrived without permission with the stroke of pen (with or without a phone call), be it President Biden, President Harris or CJ Roberts isn't going to settle things nearly as well as people imagine. This is a big problem, that requires real thinking. Not partisan or corporate bullet points.

    1. We have withstood the cultural onslaught of fettucini, egg rolls, haluski, Jameson, burritos, lutefisk, collard greens, bagels, sushi, empanadas, falafel, pad thai, pierogis, and more -- to the point at which pizza, tacos, hummus, and bagels are the core of many modern American school cafeteria menus. I am confident we are resilient and strong enough to handle another wave of immigration.

      1. “You will make it work. You always do.” Read something like that in a book.

      2. One could make the argument the only country to bring in serious cultural cuisine was Italian Americans...the rest of that stuff...yuck..ha ha

        1. One could make the argument the only country to bring in serious cultural cuisine was Italian Americans…the rest of that stuff…yuck..ha ha

          One could make any number of stupid arguments...and that's certainly one of them.

      3. I'm not sure we're actually resilient enough to endure lutefisk. That's pretty hardcore.

  9. You enter the country illegally you should be deported..period. Rule of Law..Nation States have a right to control their border and in our case our liberty and natural borders are a threat to liberty of Americans. We can expand worker visa's but no job no coming in and employers have to offer the job to at least three Americans before. A reasonable immigration to citizenship should be adopted which gives first priority to those that have special skills the country need and have jobs already. No single moms please with ten kids and no marketable skills.

    1. Nation states do not have rights. Not to control their borders or anything else. Only individuals have rights.

      1. Yes, individuals have rights. US citizens have rights within the US that non-citizens, and people outside of the US, don't have. Including the right to be in the US.

      2. A reasonable person who was seeking a discussion rather than an opportunity engage in pedantic nit-picking would interpret "Nation States have a right" as a reference to a collective right of those who make up said political entities, understanding that the term "rights" means slightly different things in different contexts, which is why the word is often accompanied by qualifiers such as "individual", "group", etc.

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