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The President and Immigration Law

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The President and Immigration Law ADAM B. COX & CRISTINA M. RODRIGUEZ The President and Immigration Law A B S T R A C T. The plenary power doctrine sharply limits the judiciary's power to police immigration regulation - a fact that has preoccupied immigration law scholars for decades. But scholars' persistent focus on the distribution of power between the courts and the political branches has obscured a second important separation-of-powers question: how is immigration authority distributed between the political branches themselves? The Court's jurisprudence has shed little light on this question. In this Article, we explore how the allocation of regulatory power between the President and Congress has evolved as a matter of political and constitutional practice. A long-overlooked history hints that the Executive has at times asserted inherent authority to regulate immigration. At the same time, the expansion of the administrative state has assimilated most executive policymaking into a model of delegated authority. The intricate immigration code associated with this delegation framework may appear at first glance to limit the President's policymaking discretion. In practice, however, the modern structure of immigration law actually has enabled the President to exert considerable control over immigration law's core question: which types of noncitizens, and how many, should be permitted to enter and reside in the United States? Whether Congress intended for the President to have such freedom is less important than understanding that the Executive's power is asymmetric. The President has considerable authority to screen immigrants at the back end of the system through enforcement decisions, but minimal control over screening at the front end, before immigrants enter the United States. We argue that this asymmetry, in certain circumstances, has pathological consequences that Congress could address by formally delegating power to the President to adjust the quotas and admissions criteria at the heart of immigration law. A U T H O R S. Adam B. Cox is a Professor of Law, University of Chicago Law School. Cristina M. Rodriguez is a Professor of Law, New York University School of Law. Many thanks to Ahilan Arulanantham, Rachel Barkow, Emily Buss, Clare Huntington, Aziz Huq, Samuel Issacharoff, Kevin Johnson, Stephen Legomsky, David Martin, Hiroshi Motomura, Catherine Sharkey, and Jonathan Weinberg for helpful comments and conversations. The Article also benefited from the insights of participants at the Immigration Law Teachers' Workshop in Miami, Florida, the NYU School of Law Faculty Workshop, the Law and Politics Workshop at the University of Chicago Law School, the Stanford Law School Faculty Workshop, the NYU Furman Scholars Workshop, and the Pepperdine Law School Faculty Workshop. We are grateful as well for the excellent research assistance of Jesse Galdston, Angela Kim, Sofia Martos, Alexander Parachini, Carolyn Sha, Moses Sternstein, and Rachel Kreinces Stier. This Article was produced, in part, with support from the D'Agostino/Greenberg Fund. ARTICLE CONTENTS INTRODUCTION 460 I. THE SEPARATION OF POWERS IN IMMIGRATION JURISPRUDENCE 465 A. The Nineteenth-Century Origins of Immigration Law 466 B. Power Sharing in the Modern Administrative State 474 II. THE SEPARATION OF POWERS IN PRACTICE 483 A. The Bracero Experiment and Inherent Executive Authority 485 B. Haitian and Cuban Refugees and Express Delegations 492 1. Modern Haitian Migration 492 2. Sources of Legal Authority 497 a. Interdiction, Statutory Exclusions, and Inherent Power 497 b. The Parole Power 501 3. Haitians, Cubans, and Executive Agenda Setting 505 C. The Rise of De Facto Delegation 510 1. Deportation for Unauthorized Presence 511 2. Deportable Postentry Conduct 514 3. Relief from Removal 517 D. Ex Post Screening and Asymmetric Delegation 519 III. THE PATHOLOGY OF ASYMMETRIC DELEGATION 528 A. De facto Delegation and Screening Costs 530 B. The Costs of Asymmetric Delegation 533 C. The Status and Symbolism of "Illegal Aliens" 536 D. Integrating Authority over Admissions and Deportation Policy 537 CONCLUSION 546 THE YALE LAW JOURNAL 119:458 200 9 INTRODUCTION Scholars and courts generally understand the plenary power doctrine in immigration law to sharply limit judicial scrutiny of the immigration rules adopted by Congress and the President. Since the doctrine was first formulated in the late nineteenth century, the Supreme Court has emphasized that immigration represents an issue best left to the political branches.' The jurisprudential and scholarly focus on the distribution of power between courts and the political branches, though important, has obscured a second separation-of-powers issue: the question of how immigration authority is distributed between the political branches themselves. The Court's immigration jurisprudence has shed little light on this question, often treating the political branches as something of a singular entity. Moreover, surprisingly little scholarly commentary has addressed the interrelationship between the two branches or attempted to discern whether consistent patterns of competition, cooperation, or any other dynamic have emerged over time to characterize the political branches' actions in this area.' This Article explores how the allocation of power between the political branches has been understood both as a matter of constitutional history and as a matter of actual practice, with a view to better elucidating the structure of American immigration law. The Supreme Court has long glossed over separation-of-powers questions in immigration law. Early jurisprudential developments set the stage for this inattention. The Court developed the plenary power doctrine in a series of cases concerning the allocation of regulatory authority between the states and the federal government. These cases arose at a time when the national government's authority was much more circumscribed generally than it is today, making the Court understandably less 1. See Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. S81 (1889); infra Section I.A. 2. To the extent that scholars have discussed this interbranch dynamic, they have generally assumed that, "[s]ince the passage of the first federal immigration legislation in 1875, it ha[s] been universally understood that Congress-and not the President-possessed the constitutional authority to set conditions for entry and to fix quota numbers." GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES & AMERICA'S HALF-OPEN DOOR 56 (1986); cf. Stephen H. Legomsky, The Making of United States Refugee Policy: Separation of Powers in the Post-Cold War Era, 70 WASH. L. REv. 675, 676 (1995) (describing a pattern of increased congressional control over immigration and highlighting the "one gaping exception" as the Refugee Act of 198o, in which "Congress virtually wrote the President a blank check to decide how many overseas refugees to admit and which ones"). THE PRESIDENT AND IMMIGRATION LAW focused on the distribution of authority within the national government. 3 The Court relied heavily in its reasoning on the concept of national sovereignty to justify the federal government's power over immigration-a concept that abstracts from the state's institutional details. Over time, the Court's continued inattention to the scope of the President's power over immigration policy has given rise to doctrinal confusion. In some cases, the Court has gone so far as to suggest that the President has inherent authority to regulate entry into the country.4 In other cases, the Court has suggested, to the contrary, that immigration law operates no differently than any other power of Congress,' and that over no other area is the legislative power more "complete" than immigration.6 The history of immigration jurisprudence, therefore, contains the seeds of two radically different accounts of the President's power over immigration: one grounded in inherent executive authority under the Constitution, the other rooted in the modern administrative state's conception of executive authority originating exclusively from Congress's decision to delegate.7 These alternative theories-one emphasizing immigration's exceptional position within the constitutional structure, the other its ordinary place in administrative law-raise the question of which account better fits the historical contours of the relationship between the President and Congress. Outside the courts, the relationship between the President and Congress has been defined by Congress's dramatic expansion of federal immigration law over the course of the twentieth century through the creation of a complex, rule-bound legal code, which has given rise to a comprehensive regulatory 3. The Chinese Exclusion Case was decided just six years before United States v. E. C. Knight Co., 156 U.S. 1 (1895), a widely-known piece of the constitutional law canon in which the Supreme Court limited the federal government's authority to regulate monopolies through a narrow interpretation of the Commerce Clause. 4. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation."). 5. See, e.g., INS v. Chadha, 462 U.S. 919 (1983). 6. Kleindienst v. Mandel, 4o8 U.S. 753, 766 (1972) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). 7. Throughout the Article, we invoke both the "President" and
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