Both sides of the immigration debate agree our current system is dysfunctional, but they disagree over why and about the proper remedy. Some are disappointed by the marginalization of a significant population who only exist in the shadows of society, believing a combination of human rights and economic policy require offering this population full membership in our society. Others are equally disappointed that our society tolerates a significant population who only exist in the shadows, believing it erodes respect for the rule of law; full exclusion, not full inclusion, is the proper response under this view. Given these divergent views, it is perhaps unsurprising that we have arrived at a middle ground arrangement that is satisfactory to none.
Institutional design may bear some of the blame as well, however. For example, immigration policy would more closely reflect the “full membership” view if former President Bush had possessed unilateral authority to create a guest worker program. At the Law & Politics Workshop on Tuesday, Professor Cristina Rodríguez presented a paper she co-authored with Professor Adam Cox examining the division of authority between Congress and the President in immigration law and how it contributes to the dysfunction of our immigration system.
The conventional wisdom is that Congress exercises almost all of the power over core immigration questions: how many immigrants should be admitted, for how long, and what types of immigrants should be admitted. Professors Rodríguez and Cox contend that the President actually shapes our answers to these core questions in significant ways through three mechanisms: inherent executive authority, formal congressional delegation, and de facto congressional delegation. These first two mechanisms have played important roles at certain times in American history, such as during the Bracero immigration program during World War II and the Cuban/Haitian migration crisis of the 1970s, 80s, and 90s. But today the most important mechanism is de facto congressional delegation.
De facto delegation operates through three components of current immigration policy according to Rodríguez and Cox. First, any unauthorized immigrant is deportable under current law. This policy does not confer any formal presidential discretion. Over one-third of all noncitizens in the United States lack authorization—either because they entered illegally or remained after their visa expired—however, so enforcing this rule against more than a tiny fraction of the unauthorized community is impractical. The President can therefore exercise significant authority over what type of immigrants are in the US and for how long through its enforcement policies. For example, increased border enforcement is likely to shape the percentage of the unauthorized population that is Hispanic and also implicitly prefer those who have been in the country longer over new entrants. Controlling how many immigrants are in the US is more difficult.
Second, Congress has dramatically expanded what counts as deportable post-entry conduct for authorized noncitizens. Removal of most restrictions requiring the deportable conduct occur within a certain period of time after entering the country has accompanied this expansion. This has multiplied the population of individuals whose presence in the US is at the discretion of the President and added long term, authorized permanent residents to this population.
Third, many provisions of the immigration laws formally authorizing relief from deportation have been removed in recent years. This may seem to cabin executive discretion since immigration judges are executive branch officials. Rodrígeuz and Cox contend this change only shifts which executive branch officials exercise discretion and unconstrains this discretion from any statutory requirements. The validity of this contention depends on how independent immigration judges are from executive control. The paper does not explore this other than by noting that immigration judges are separated from the rest of the immigration apparatus in the government hierarchy. Regardless, the emasculation of immigration judges likely does little to expand executive discretion compared to the President’s general enforcement discretion.
The key insight of the paper is that these three components of executive discretion all operate on the backend of the immigration system after the immigrant is already in the country. Rodríguez and Cox refer to this as asymmetric delegation because there is no corresponding executive discretion on the front end. They conclude such discretion is inconsistent with notions of transparency and accountability that permeate our theories of legitimate separation of powers; they are careful to point out, however, that current immigration jurisprudence makes judicial intervention unlikely.
As Rodríguez and Cox point out, it is easy to see why Congress and the President might prefer an institutional arrangement that lacks transparency and accountability. Both branches can create the system they prefer quietly rather than openly dealing with a politically divisive issue, at least until the unauthorized population grows large enough to trigger public attention. Such public attention obviously occurred in the last couple of years. It took twenty years from the last time the issue was dealt with openly, however, and twenty years of having the system you prefer at little or no political cost is enticing.
Even though the political branches may have strong incentives to create such a system, the current system is “pathological” according to Rodríguez and Cox. It encourages the President to engage the immigration policy debate through his opaque, ex post tools because it is so much cheaper to use these tools than engage in open dialog with Congress to modify immigration policy ex ante through legislation. This further exacerbates the transparency and accountability problems. If one believes the current low-skill immigration population is desirable or inevitable, current system is also problematic because it slows the rate of cultural integration; unauthorized immigrants are unwilling to engage with the community because of the risks it entails. Furthermore, the current system leaves unauthorized immigrants vulnerable to abuse by government and private actors because they are unwilling or unable to access the full protections of the legal system.
This system also indirectly encourages a disproportionate amount of low-skill immigration. Low-skill workers with few other choices are more likely to accept a marginalized status dependent on the opaque discretion of the President than high-skilled workers with other opportunities.
Rodríguez and Cox conclude their paper by proposing a different institutional arrangement that gives the President ex ante as well as ex post authority. For example, the President could adjust the quotas within immigration classifications on a yearly basis to account for labor market demands and geopolitical events. More radically, the President could have authority to decide ex ante what type of immigrant to admit and from where. The hope is that this will increase the level of transparency and accountability and thereby remove most of the pathological characteristics of the current system. Several workshop participants were skeptical that ex ante executive authority would actually lead to a different system, let alone a better one.
As one participant pointed out, this is a proposal to make immigration law look like environmental law, and one question Rodríguez and Cox need to address is why this delegation has already happened in environmental law but not immigration law. In a similar vein, several participants were concerned that they could not see what made the ex post versus ex ante delegation story unique to immigration law. Nor could they see why the ex post problem was pernicious here but not pernicious in other areas. Professor Rodríguez pointed to the human rights dimension of immigration law that is not present in other context.
A larger shortcoming of the paper is that it discusses some of the reasons why any delegation to the President in the immigration context might be good or bad, but it fails to ultimately pick a side and persuasively defend it. This is a shortcoming because Rodríguez and Cox propose a solution that implicitly concludes delegation is appropriate. Why else would you choose a solution that increases the level of delegation? Without a defense of delegation, however, it is equally plausible that the way to remove the “pathologies” is through cabining the role of the President as much as possible and having a congressionally-driven system both formally and in fact. As participants noted, critics of prosecutorial discretion in the criminal context do not advocate for increased ex ante executive discretion. Others observed that our experience with ex ante President-driven immigration policy during the Bracero period did not inspire confidence.
Professor Rodríguez seemed to acknowledge at the workshop that the choice of ex ante presidential discretion was policy driven. She prefers legalization of current unauthorized workers and increased legal immigration, and she believes an ex ante President-driven system is more likely to achieve that result. It would be nice to see a more outcome-neutral justification in the paper, or at least an explicit account of the political economy that explains why an ex ante President-driven system is necessary for her preferred outcome.
Some participants were also concerned that institutional design was not the problem at all, and that a “pathological” ex post system exists because any choice of ex ante rule is unenforceable (except possibly an open borders policy). The United States cannot currently control its borders so de facto immigration policy is not set by the President or Congress. It is set by the aggregated decisions of the roughly 500,000 unauthorized immigrants who pore over our borders each year. For context, there are roughly 650,000 authorized immigrants each year.
In conclusion, Professors Rodríguez and Cox offer an insight description of how the political branches divide immigration policymaking between themselves that challenges the conventional wisdom. This aspect of the paper alone makes it a worthwhile read for anyone interested in immigration policy. And any gaps in their normative claims are understandable at this point as the paper is still a work-in-progress.