The Yale Journal on Regulation’s online symposium on Adam Cox and Cristina Rodriguez’s important new book, The President and Immigration Law, has now closed with the authors’ response to the commentators and critics.
All contributions can be found 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. In evaluating possible solutions to the problems they identified, however, I argue that the authors underestimate the importance of tightening constitutional restrictions on executive power and facilitating the legal entry of migrants into the United States.
In their thoughtful response, Cox and Rodriguez partially agree with my proposals, but stress that neither the complete elimination of the constitutional double standards on immigration policy nor the assumption of a presumption of free movement across national borders is likely to be fully realized soon, if ever.
I agree that these ideals are unlikely to be fully realized anytime soon, and I also said so in my first post. But I also pointed out that there is plenty of room for gradual progress on both fronts. It is also unlikely that Cox and Rodriguez’s own reform proposal to legalize most of the current undocumented immigrant population and severely curb detention and deportation will be fully implemented in the near future. For the reasons given in my post, strengthening judicial review and removing barriers to legal migration are essential components of any reform agenda, whether incremental or radical.
In fact, failure to pursue the former could even undermine many of the latter’s beneficial effects. If detention and deportation were more restricted, the anti-immigrant White House would have incentives to redouble its discretion to try to keep migrants out in the first place. If so, there may be a small net loss of executive power and undermining the rule of law in this area. For prospective migrants, it can be just as bad, or (in some cases) even worse, to be banned initially than to be deported once they have entered the country.
I also previously 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.
Finally, I would like to once again praise the authors for their outstanding book. The debate on these issues will certainly continue.