Immigration separation of powers and the president's power to preempt.

Author:Kim, Catherine F.
 
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ABSTRACT

This Article explores the unique separation of powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt state law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting state laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to administrative decisions. At the same time, however, it has imposed significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, the Court departed from these existing doctrines to hold that a conflict with the potential exercise of executive prosecutorial discretion suffices to displace state law. In doing so, it signaled an unprecedented expansion of the executive's power to preempt, one without apparent limit.

This Article argues that considerations unique to immigration law undermine the utility of existing doctrinal frameworks for limiting executive preemption. Nonetheless, some restriction remains warranted. It proposes a functionalist approach to cabining executive authority in this context, awarding preemptive effect to executive decisions that mitigate the institutional concerns associated with administrative preemption, while denying it to those that do not.

INTRODUCTION

Scholars have long observed the inapplicability of ordinary constitutional rules to immigration law. (1) Most have focused on the federalism aspects of such "immigration exceptionalism," involving the unique allocation of authority between the federal government and the states. (2) Until recently, however, few have explored the separation of powers issues involving the allocation of immigration authority between Congress and the President. (3) This Article focuses specifically on the power of the executive branch, rather than Congress, to displace state laws involving aliens.

Determining the scope of the executive branch's preemptive power presents one of the most pressing questions in immigration law today. That is because the great bulk of contemporary immigration policymaking stems not from Congress, but rather from executive branch agencies and states. The failure by Congress to enact comprehensive immigration reform presents just the most recent example of the difficulties facing congressional enactments in immigration. Partisan gridlock, coupled with shifting political alliances over national immigration policy, exacerbate the legislative inertia that exists in other areas of federal regulation. (4) Presidents and state governments have stepped into the breach. The Obama Administration's Deferred Action for Childhood Arrivals (DACA) program granting relief from deportation to certain undocumented aliens presents a particularly salient example of executive policymaking in response to congressional inaction, (5) although countless others exist. (6) At the same time, frustration with the perceived failure of Congress has spurred an explosion of state and local regulation, ranging from efforts to provide "sanctuaries" to undocumented aliens to legislation designed to facilitate their deportation. (7) As these respective bodies of regulation continue to expand, conflicts between executive authority and state laws become inevitable. (8)

Pursuant to traditional understanding, the Constitution vests Congress and only Congress with the authority to displace conflicting state laws. The Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to executive branch decisions. At the same time, the two emerging doctrines of executive preemption impose significant restrictions on its exercise. In its recent decision in Arizona v. United States, however, the Court departed from these doctrines to hold that in the immigration context, a conflict with the potential exercise of executive branch prosecutorial discretion suffices to displace state law. (9) In doing so, it signaled an unprecedented expansion of the executive's power to preempt, one without apparent limit.

This Article contextualizes the Arizona decision as a response to unique challenges posed by the immigration context that undermine the utility of existing doctrinal approaches to limiting executive preemption. Notwithstanding the difficulties in applying preemption doctrines to the immigration context, some limit must remain. Extending preemptive effect to all potential discretionary decisions rendered by immigration agencies would displace any state regulation of aliens, a result unintended by either the Court or Congress, to say nothing of our constitutional framers. The question remains, then, under what circumstances should courts after Arizona permit immigration agencies' exercises of prosecutorial discretion to displace state law.

Drawing from the growing body of administrative law scholarship employing a functionalist approach to resolving agency preemption disputes, this Article argues that the preemptive effect of immigration agency decisions should depend on the extent to which the decisionmaking process mitigates the institutional concerns associated with administrative preemption. (10)

These concerns include the risk that agencies will not adequately consider states' interests, be held politically accountable for their decisions, or carefully deliberate their decisions. In light of these concerns, a number of scholars suggest limiting preemptive effect to agency decisions adhering to the procedural formalities necessary to carry the binding "force of law." (11) Pursuant to this approach, agency decisions rendered through notice-and-comment rulemaking and formal adjudication would be entitled to preemptive effect, while those embodied through informal policy statements and interpretive guidance would not. (12) An examination of the institutional design of immigration agency decisionmaking, however, suggests that contrary to conventional wisdom, the procedural formality of the agency's decision serves as a poor proxy for mitigating the institutional concerns associated with administrative preemption. Rather, some types of nonformalized decisions--particularly highly visible ones announced by high-level administrative officials-- have as strong a claim to preemptive effect as formalized decisions rendered pursuant to immigration court adjudication. (13)

Part I sets forth two competing doctrines for limiting executive preemption, each rooted in a different theory of executive power. It then discusses the Arizona majority's departure from these doctrinal limits. Part II explains the Arizona decision as a response to unique challenges posed by the immigration context. In light of the difficulties in applying existing doctrines to the immigration context, Part III proposes a functionalist approach to limiting executive preemption in this context.

  1. DOCTRINES OF EXECUTIVE PREEMPTION

    Outside of the immigration context, the Supreme Court has developed two competing doctrines to extend preemptive effect to executive branch decisions while at the same time imposing significant restrictions to its exercise. Pursuant to the administrative law preemption doctrine, the executive branch may displace state laws only where it acts pursuant to a valid delegation of congressional authority and adheres to the procedural formalities necessary to carry the binding force of law. The foreign affairs preemption doctrine dispenses with these requirements but at the same time limits executive preemption to administrative decisions that actually implicate foreign affairs and do not contravene congressional will. Arizona appears to reject both doctrines to announce an entirely novel concepcion of executive preemption, one wholly untethered from the restrictions imposed by existing doctrines.

    1. Traditional Understandings

      Pursuant to traditional understanding, the Constitution vests Congress and only Congress with the authority to preempt state laws. In his seminal analysis of preemption principles, Professor Bradford Clark defends this view, building on Herbert Wechsler's characterization of Congress as the institutional guarantor of the "political safeguards of federalism" (14) to argue that the only federal laws entitled to displace state regulations--other than the Constitution and duly enacted

      treaties--are properly enacted congressional statutes. (15) He maintains that the Supremacy Clause of Article VI, which refers to "the Laws of the United States which shall be made in Pursuance thereof," (16) restricts the types of federal law entitled to preemptive effect to those enacted in conformity with the formal lawmaking procedures set forth in Article I, Section 7, specifically the requirements of bicameralism and presentment. (17) He reasons that by subjecting all preemptive federal legislation to approval by the Senate specifically--the body designed to provide the most direct representation of individual states--the Framers sought to guarantee a meaningful state voice in any decision to displace state regulation. (18) Pursuant to this analysis, executive pronouncements, departing from formal constitutional lawmaking requirements, fail to carry preemptive effect. (19)

      Although the Supreme Court continues to maintain that congressional intent remains the "touchstone" of any preemption analysis, (20) it has issued a number of decisions in recent years extending preemptive effect to executive branch decisions. (21) In doing so, it has developed two competing doctrines--each rooted in a different theory of executive power (22)--to extend preemptive effect to executive branch decisions while at the same time imposing significant restrictions to its exercise.

    2. Administrative Law Preemption

      The first doctrine of executive preemption--the administrative law preemption doctrine--relies on a theory of...

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