Constraint through Delegation: The Case of Executive Control over Immigration Policy
Rodriguez, Cristina M., Duke Law Journal
This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law's core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should create an executive branch agency, marked by indicia of independence, to set visa policy--an avenue increasingly contemplated by reformers.
Though it may seem counterintuitive, delegation of greater authority can help constrain executive power by substituting a transparent process, subject to monitoring, for decisionmaking that occurs hidden from view. Delegation can also help overcome limitations in the legislative process that contribute to the current regime's dysfunction, making immigration policy more efficient and effective. The Refugee Act of 1980 provides a parallel that is helpful in thinking through what it would mean to delegate ex ante admissions power to the executive.
TABLE OF CONTENTS Introduction I. Justification A. The Systemic Ideal B. Limitations of the Status Quo II. Design A. The Decisionmakers 1. Institutional Characteristics 2. The Argument for Delegation B. The Refugee Act as Parallel C. Agency Structure 1. Independent Versus Executive Agency 2. Congressional Monitoring of Executive Policymaking 3. Public Participation, Judicial Review, and Other Controls III. Feasibility Conclusion
In The President and Immigration Law, (1) Adam Cox and I explore the relationship between executive and legislative decisionmaking in the immigration context, with a view to understanding how constitutional responsibility has been allocated between the political branches for answering "immigration policy's core questions: what types of noncitizens, and how many, should be admitted to and permitted to reside in the United States." (2) Though statements of congressional primacy in relation to core policy matters exist in Supreme Court dicta (3) and have been repeated during legislative debates, (4) the actual allocation of powers between the two branches, as a matter of practice, has been considerably more complex. (5) The President and Immigration Law demonstrates through analysis of historical and contemporary instances of interaction between the branches that joint and sometimes competitive resolution of specific immigration problems, including refugee crises (6) and domestic labor shortages, (7) has determined the contours of the separation of powers dynamically.
More specifically, The President and Immigration Law elucidates two important features of the separation of powers in immigration law. First, as a formal matter, the power to make decisions regarding the core questions of immigration law has indeed come to reside with Congress, (8) which maintains a monopoly on setting the numbers and types of visas issued each year. Second, however, the president exercises similar power over core immigration policy as a de facto matter, albeit indirectly and in a manner obscured from scrutiny, primarily through prosecutorial discretion or the use of discretionary enforcement power. (9) The article concludes with an analysis of the dysfunctions created by this de facto power, which include not only nontransparent decisionmaking, but also the perpetuation of illegal immigration. The article proposes that Congress address these dysfunctions through new approaches to institutional design, calling for "vertical integration" (10) within the executive of authority over admissions and deportation policy. …