The Yale Journal on Regulation is hosting an online symposium on Adam Cox and Cristina Rodriguez’s award-winning recent book The President and Immigration Law. Contributors include various constitutional lawyers and immigration scholars. There are already contributions from Zachary Price, Jessica Bulman-Pozen, Shalini Bargava Ray and me. Jill Family and David Rubenstein published an introduction to the symposium, which provides an overview of the book by Cox and Rodriguez, as well as the various commentaries on the symposium.
In the next few days the Journal on Regulation will publish additional articles by Daniel Farber and Eisha Jain. Then Cox and Rodriguez will send a response to their commentators and critics.
Here is the editor’s description of the book:
Who Controls American Immigration Policy? The biggest immigration controversy of the past decade has involved all of the President’s actions, such as President Obama’s decision to protect dreamers from deportation and President Trump’s proclamation to ban immigrants from several Muslim-majority nations. While critics of these policies were separated by a great ideological divide, their broadsides embodied the same widespread belief: Congress, not the President, should dictate who can come to the United States and who will be forced to go.
This belief is a myth. Adam B. Cox and Cristina M. Rodriguez tell in the Presidential and Immigration Act the untold story of how the president became our top immigration politician over two centuries. You will delve deep into the history of American immigration policy, from disputes in the founding period to the deportation of sympathizers with France to contemporary debates about asylum seekers on the southern border. They show how migration crises, real or imaginary, have enabled presidents. More importantly, they also reveal how the ordinary power of the executive to decide when and against whom the law should be enforced has become an extraordinarily powerful tool for immigration policy.
This landmark report helps us understand how the United States led to an enormous shadow immigration system that nearly half of all non-citizens in the country live in violation of the law. It also provides a blueprint for reforms that accept rather than deplore the president’s role in shaping the national community, and outlines strategies to curb law enforcement abuse in immigration and beyond.
Here is an excerpt from my contribution to the symposium:
Adam Cox and Cristina Rodríguez wrote what is likely to be the final work on the president’s power over immigration. As they describe, the executive has wide discretion over immigration policy, although nothing in the text or the original meaning of the Constitution grants it such power.
Their diagnosis of the problem is solid, as are many of their reform proposals. However, they underestimate the importance of eliminating constitutional double standards in immigration law. Furthermore, the problems they highlight can only be adequately addressed if we make it easier for potential immigrants to enter the United States, rather than just restricting deportation retrospectively.
Part of that discretion is only part of a broader problem in our legal system. There are far more laws than any government can possibly enforce, and far more law breakers than ever before can be caught and prosecuted. As a result, a large majority of adult Americans have breached federal criminal law (not to mention state law) at some point in their lives and could potentially face criminal prosecution. Undocumented immigrants are far from the only people left free simply because of a lack of resources and the exercise of executive discretion. However, the immigration situation is particularly serious due to the grave consequences of deportation and the weakness of proper procedural protection in the system for enforcing immigration regulations.
Cox and Rodríguez underestimate the importance of eliminating constitutional double standards that largely exempt immigration policy from the constitutional restrictions that apply to almost all other government policies.
Cox and Rodríguez claim that Trump versus Hawaii is an aberration and a “dramatic departure from the past”. In some ways this is true, particularly in that it defends immigration’s double standards much more blatantly than any other recent decision. Unfortunately, the ruling is part of a much broader pattern in which both courts and executive officials refuse to apply strict constitutional restrictions on immigration policy.
Among other things, the detention and deportation of immigrants are not subject to the same procedural restrictions as other serious imprisonment. This leads to such horrors as small children who “represent” themselves in deportation proceedings because there is no right to provide legal assistance to needy migrants who are exposed to deportation. Weak constitutional standards play an important role in the state of deportation and detention, which Cox and Rodríguez refer to as the “shadow system” of immigration law.
Ending such double standards would bring immigration policy closer to the text and original meaning of the Constitution. It would also restrict some of the worst aspects of the immigration system – including some of the worst abuses of the shadow system …
Ultimately, however, the president’s broad discretion to exclude migrants can only be diminished by making it easier for them to enter legally from the start.
If we were to restrict interstate movement in the same way as immigration, there would be massive enforcement discretion and related abuse of power over the latter (as actually happened when state governments did one in the 19th century had greater power to exclude internal migrants). ….
[T]There are many ways in which progress can be made gradually by marginally liberalizing immigration policy. Those seeking to reduce deportation, violations of civil liberties, and excessive executive discretion over immigration policy should focus on making it easier for immigrants to enter the United States legally in the first place.
I discuss in more detail some of the issues raised in my contribution to the symposium in my recent book Free to Move: Foot Voting, Migration and Political Freedom.
I would like to thank the editors of the symposium for the opportunity to contribute and Adam and Cristina for writing an excellent book!