If Not Congress, Then Whom? Making the Case for Greater Legislative Oversight of Executive Immigration Policy

• Author: Anashua Dutta
• Position: J.D., Georgetown University Law Center (expected May 2022); B.S.F.S., Georgetown University (2017)
• Pages: 649-667

If Not Congress, Then Whom? Making the Case for

Greater Legislative Oversight of Executive

Immigration Policy

ANASHUA DUTTA*

INTRODUCTION

Few issues grab more headlines or heighten more political passions than ques-

tions of who among non-U.S. persons may enter, and stay, in this country.

1

See Derek Thompson, How Immigration Became So Controversial, ATLANTIC (Feb. 2, 2018), https://

www.theatlantic.com/politics/archive/2018/02/why-immigration-divides/552125/ [https://perma.cc/89QQ-

CKLD].

Under

the Trump administration, these issues came to the fore from the administration’s

first week in power, when the President’s first “travel ban” was implemented. The

ban, which came on the heels of a campaign filled with Islamophobic statements

and was written by individuals known for their hostility towards immigration,

raised several questions of legality, among which was the role of the executive in

determining who may enter the country.

2

While much media coverage of the ban

focused on litigation brought by affected individuals, non-profits, and state gov-

ernments against the Trump administration, this Note will argue that when the

topic in question is related to immigration, Congress can—and should—take a

comprehensive and probing oversight role over the executive branch through leg-

islative investigative functions.

Congressional investigations, whether conducted through letters requesting in-

formation, subpoenas, hearings, or a mix of the three, are fundamental to our sys-

tem of government. The power to investigate, while not explicitly bestowed on

Congress by the Constitution, is inherent in its lawmaking responsibilities.

3

Not

only do investigations allow lawmakers to assess pending legislation, gather in-

formation for future legislation, and oversee federal agencies,

4

Investigations & Oversight, U.S. HOUSE OF REPRESENTATIVES: HIST., ART & ARCHIVES, https://history.

house.gov/Institution/Origins-Development/Investigations-Oversight/ [https://perma.cc/2855-6Z5G] (last

visited Jan. 5, 2022).

these investiga -

tions maintain our system of checks and balances, allowing the legislative branch

to oversee the executive branch in a way that the judicial branch cannot.

5

While

* J.D., Georgetown University Law Center (expected May 2022); B.S.F.S., Georgetown University (2017).

© 2022, Anashua Dutta.

1.

2. See infra notes 29–48.

3. U.S. CONST. art. 1, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United

States, which shall consist of a Senate and House of Representatives.”).

4.

5. Id.

649

private citizens have repeatedly sued the executive branch, such cases require the

plaintiff to show actual injury from the challenged executive actions (or inac-

tions).

6

Failure to demonstrate standing has thrown many plaintiffs out of court

and left many questionable executive branch policies and programs intact.

7

Unlike the judicial branch, the legislative branch does not have to show injury (or

causation and redressability, for that matter): it has the inherent power to investi-

gate the executive branch either to inform current and future legislation or to

oversee operations on executive policies and programs.

8

Furthermore, due to the

jurisprudence of the Supreme Court, only the executive and legislative branches

can make decisions on immigration matters for the most part.

9

Of all the issues the executive oversees, there are few that merit aggressive

congressional oversight more than immigration policy. Reasons for this impor-

tance include constitutional, institutional, and ethical considerations. First, due to

the development of constitutional jurisprudence, the judiciary is largely unable to

oversee the executive branch on immigration matters. Second, immigration is an

issue on which Congress can—and must—make law, and it should exercise its

investigative functions to both gather information and oversee the executive

branch. Finally, Congress has a duty, from the perspectives of legal and norma-

tive ethics, to check the executive branch when it is engaging in practices that run

counter to the spirit and substance of this country’s laws and values.

There are undoubtedly drawbacks to this argument. Aggressive congressional

oversight of executive action on immigration will not always unfold in a way that

brings about the most humanitarian outcome in the short term. Congressional

oversight of executive actions on pro-humanitarian immigration policies, such as

the Deferred Action for Childhood Arrivals policy promulgated under the Obama

administration, may result in short-term political pressure to rescind such

policies. Yet, investigations conducted in good faith to investigate and oversee

questionable executive branch policies can bring about desirable long-term insti-

tutional effects. Congressional investigations into executive immigration actions

force the executive branch to publicly disclose its motivations for taking these

actions; such a process cannot be replicated in a case before a traditional Article

III court.

6. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992).

7. Bradford C. Mank, Clapper v. Amnesty International: Two or Three Competing Philosophies of Standing

Law?, 81 TENN. L. REV. 211, 239–40 (2014) (criticizing the Supreme Court’s failure to find plaintiffs showed

standing in case arguing that the U.S. government was spying on foreign clients); Mary Kathryn Nagle,

Tracing the Origins of the Fairly Traceable: The Black Hole of Private Climate Change Litigation, 85 TUL. L.

REV. 477, 478–82 (2010) (arguing that the development of standing doctrine “limit[ed] the ability of regulatory

beneficiaries to bring public interest lawsuits against federal agencies in the Executive Branch”).

8. McGrain v. Daugherty, 273 U.S. 135, 173–75 (1927) (holding that Congress has “auxiliary powers” sub-

ordinate to its lawmaking functions which are “necessary and appropriate” to carrying out its legislative

responsibilities).

9. See discussion infra Section I.A.

650 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:649