ARTICLE CONTENTS INTRODUCTION I. THE SEPARATION OF POWERS IN IMMIGRATION JURISPRUDENCE A. The Nineteenth-Century Origins of Immigration Law B. Power Sharing in the Modern Administrative State II. THE SEPARATION OF POWERS IN PRACTICE A. The Bracero Experiment and Inherent Executive Authority B. Haitian and Cuban Refugees and Express Delegations 1. Modern Haitian Migration 2. Sources of Legal Authority a. Interdiction, Statutory Exclusions, and Inherent Power b. The Parole Power 3. Haitians, Cubans, and Executive Agenda Setting C. The Rise of De Facto Delegation 1. Deportation for Unauthorized Presence 2. Deportable Postentry Conduct 3. Relief from Removal D. Ex Post Screening and Asymmetric Delegation III. THE PATHOLOGY OF ASYMMETRIC DELEGATION A. De facto Delegation and Screening Costs B. The Costs of Asymmetric Delegation C. The Status and Symbolism of "Illegal Aliens" D. Integrating Authority over Admissions and Deportation Policy CONCLUSION INTRODUCTION
Scholars and courts generally understand the plenary power doctrine in immigration law to sharply limit judicial scrutiny of the immigration rules adopted by Congress and the President. Since the doctrine was first formulated in the late nineteenth century, the Supreme Court has emphasized that immigration represents an issue best left to the political branches. (1) The jurisprudential and scholarly focus on the distribution of power between courts and the political branches, though important, has obscured a second separation-of-powers issue: the question of how immigration authority is distributed between the political branches themselves. The Court's immigration jurisprudence has shed little light on this question, often treating the political branches as something of a singular entity. Moreover, surprisingly little scholarly commentary has addressed the interrelationship between the two branches or attempted to discern whether consistent patterns of competition, cooperation, or any other dynamic have emerged over time to characterize the political branches' actions in this area. (2)
This Article explores how the allocation of power between the political branches has been understood both as a matter of constitutional history and as a matter of actual practice, with a view to better elucidating the structure of American immigration law. The Supreme Court has long glossed over separation-of-powers questions in immigration law. Early jurisprudential developments set the stage for this inattention. The Court developed the plenary power doctrine in a series of cases concerning the allocation of regulatory authority between the states and the federal government. These cases arose at a time when the national government's authority was much more circumscribed generally than it is today, making the Court understandably less focused on the distribution of authority within the national government. (3) The Court relied heavily in its reasoning on the concept of national sovereignty to justify the federal government's power over immigration--a concept that abstracts from the state's institutional details.
Over time, the Court's continued inattention to the scope of the President's power over immigration policy has given rise to doctrinal confusion. In some cases, the Court has gone so far as to suggest that the President has inherent authority to regulate entry into the country. (4) In other cases, the Court has suggested, to the contrary, that immigration law operates no differently than any other power of Congress, (5) and that over no other area is the legislative power more "complete" than immigration. (6) The history of immigration jurisprudence, therefore, contains the seeds of two radically different accounts of the President's power over immigration: one grounded in inherent executive authority under the Constitution, the other rooted in the modern administrative state's conception of executive authority originating exclusively from Congress's decision to delegate. (7)
These alternative theories--one emphasizing immigration's exceptional position within the constitutional structure, the other its ordinary place in administrative law--raise the question of which account better fits the historical contours of the relationship between the President and Congress. Outside the courts, the relationship between the President and Congress has been defined by Congress's dramatic expansion of federal immigration law over the course of the twentieth century through the creation of a complex, rule-bound legal code, which has given rise to a comprehensive regulatory system. This central development might seem to suggest that the President has little power to decide what we will refer to in this Article as immigration policy's core question: what types of noncitizens, and how many, should be admitted to and permitted to reside in the United States? (8) This assumption amounts to conventional wisdom today. Our major contribution in this Article is to show that, in reality, the President has historically possessed tremendous power over core immigrant screening policy through three channels: through claims of inherent executive authority; through formal mechanisms of congressional delegation; and through what we call de facto delegation.
We consider two major events in twentieth-century immigration history as examples of the inherent authority and formal delegation models: the creation and implementation of the temporary worker program of the Bracero era and the response to the Cuban and Haitian refugee crises of the 1970s, 1980s, and 1990s. (9) The history of the Bracero Program reveals two important facts: the Roosevelt Administration commenced the World War II-era guest worker program without first seeking explicit congressional authorization; and when the temporary authorization that Congress eventually provided expired, the Truman Administration ignored that expiration and continued to operate the program. This historical episode thus provides provocative evidence that the possibility of inherent executive authority over migration has existed in practice and is not limited to a few old Supreme Court opinions. The Caribbean refugee crises highlight the President's use of explicitly delegated screening authority in the form of "emergency" and "parole" powers. Though several presidents used these delegated powers to manage the refugee flows, they also made claims to inherent authority, in ways that sometimes appeared to ignore or circumvent the limitations that Congress had placed on the executive through delegation. (10)
Though both of these sources of authority still play important roles in defining the scope of executive control over core policy, we argue that a third paradigm of de facto delegation captures much of the immigration separation of powers today. Over the twentieth century, Congress developed a detailed, rule-bound immigration code. (11) This code would seem, at first glance, to reflect a world in which Congress sets immigrant screening priorities, thus depriving the President of discretion over core policy--and so goes the conventional account. We show, by contrast, that this detailed code has had the counterintuitive consequence of delegating tremendous authority to the President to set immigration screening policy by making a huge fraction of noncitizens deportable at the option of the Executive. Congress, de facto, has delegated screening authority to the Executive in two ways. First, Congress's radical expansion of the grounds of deportation has rendered a large fraction of legal immigrants deportable. Second, the combination of stringent admissions restrictions established by Congress and lax border enforcement policy by the Executive effectively has given the Executive primary control over a large unauthorized population within the United States. In the last two decades that population has grown dramatically, such that today one-third of all resident noncitizens are deportable at the option of the President--a fact that functionally gives the President the power to exert control over the number and types of immigrants inside the United States.
The President thus has far more screening power than is often recognized. (12) This conclusion has at least two important implications. First, it shows that the inauguration of a new President can bring with it remarkable changes in immigration policy. Commentators and scholars have speculated a great deal about what Barack Obama's election means for comprehensive immigration reform. Our work underscores that Obama has the power to overhaul the immigration screening system even in the absence of congressional action. Though we doubt very much that he will claim inherent executive authority to restructure our family admissions policy or create a large-scale guest worker program, de facto delegation makes it possible for him, without having to resort to the legislative process, to alter significantly the composition of the immigrant labor force, to permit immigrants with minor criminal convictions to stay rather than removing them, and so on.
Second, our richer understanding of the actual relationship between the President and Congress in the immigration arena raises important new normative questions that we begin to address with this Article. Because our central objective in this Article is to reorient the descriptive lens through which scholars and policymakers evaluate immigration law, we cannot hope to offer a complete critique or defense of the President's modern policymaking role. Nonetheless, our descriptive account does suggest that today's de facto delegation may be giving rise to considerable costs. Perhaps the most important feature of this modern separation-of-powers structure is that it generates a potentially dangerous asymmetry. The President's power to decide which and how many noncitizens should live in the United States operates principally at the back end of the system, through the...