The president and immigration law redux.

• Author: Cox, Adam B.
• Position: Abstract through I. A Brief History of Presidential Immigration Law, p. 104-142

ABSTRACT. In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and enable them to work in the United States. These events have drawn renewed attention to the President's power to shape immigration law. They also have reignited a longstanding controversy about whether constitutional limits exist on a central source of executive authority: the power to enforce the law.

In using the Obama relief policies to explore these dynamics, we make two central claims. First, it is futile to try to constrain the enforcement power by tying it to a search for congressional enforcement priorities. Congress has no discernible priorities when it comes to a very wide swath of enforcement activity--a reality especially true for immigration law today. The immigration code has evolved over time into a highly reticulated statute through the work of numerous Congresses and political coalitions. The modern structure of immigration law also effectively delegates vast screening authority to the President. Interlocking historical, political, and legislative developments have opened a tremendous gap between the law on the books and the law on the ground. Under these conditions, there can be no meaningful search for congressionally preferred screening criteria. Far from reflecting a faithful-agent framework, then, immigration enforcement more closely resembles a two-principals model of policymaking--one in which the Executive can and should help construct the domain of regulation through its independent judgments about how and when to enforce the law.

Second, when exploring limits on the enforcement power, we should focus not on who benefits from enforcement discretion but on how the Executive institutionalizes its discretion. The Obama relief initiatives are innovative: they bind the exercise of prosecutorial discretion to a more rule-like decision-making process, constrain the judgments of line-level officials by subjecting them to centralized supervision, and render the exercise of enforcement discretion far more transparent to the public than is customary. These efforts to better organize the enforcement bureaucracy ultimately advance core rule-of-law values without undermining deterrence or legal compliance, as some critics have worried. Moreover, while our focus on discretion's institutionalization requires contextualized judgments that may rarely translate into clear doctrinal rules to govern the enforcement power, we believe it is generally unnecessary and unwise to use constitutional law to limit the President's authority over how to organize the enforcement bureaucracy.

ARTICLE CONTENTS INTRODUCTION I. A BRIEF HISTORY OF PRESIDENTIAL IMMIGRATION LAW A. From Delegation to Unilateralism B. Policymaking Through (Under)Enforcement C. The Rise of De Facto Delegation D. Centralizing Enforcement Within the Executive II. THE SUBSTANTIVE GROUNDS OF ENFORCEMENT DISCRETION A. Congressional Priorities and Faithful Agents B. The Limits of Congressional Intent C. The Two-Principals Model of Immigration Policymaking 1. Executive Construction of Enforcement Domains 2. Against Faithful Agents III. THE INSTITUTIONALIZATION OF ENFORCEMENT DISCRETION A. Rules and Standards B. Supervision (Not Separation) of Powers 1. Institutional Design 2. Constitutionalized Decentralization C. Transparency and the Rule of Law 1. The Logic of Deterrence 2. Underenforcement and Ex Post Screening D. Benefits Versus Penalties IV. WHITHER LIMITING PRINCIPLES? A. Current Constraining Principles B. Future Discipline 1. Meta: The Process of Institutionalization 2. Prosecutorial Discretion in a Second-Best Regulatory Environment CONCLUSION INTRODUCTION

On November 20, 2014, President Obama announced sweeping executive reforms of immigration law. (1) The centerpiece of his announcement was an initiative designed to provide a measure of security to millions of unauthorized immigrants. Under it, executive branch officials would exercise discretion to defer the deportation of unauthorized immigrants who have lived for years in the United States and have U.S. citizen (or green-card holding) children. Parents who received this "deferred action" also would be eligible to receive work permits. As many as 3.6 million noncitizens may be eligible for relief under the program--a number that jumps to more than five million when the program for parents is combined with an earlier-announced initiative for unauthorized immigrants who arrived in the United States as children. (2) Together, President Obama's efforts could protect nearly fifty percent of today's unauthorized immigrant population. (3)

The President's decision to defer the deportation of millions of immigrants sparked sharp debate among scholars and political figures about his authority to create such a large-scale relief program. The Administration provided an unusually meaty framework for the debate by releasing an opinion, prepared by the Office of Legal Counsel (OLC) in the Department of Justice, concluding that the initiative was well within the Administration's statutory and constitutional authorities. (4) Critics disagreed with OLC's conclusion, decrying President Obama's actions as not just unwise but unconstitutional--the latest installment in the rise of an imperial presidency. (5) The debate quickly made its way to the federal courts, as nearly two dozen states challenged the relief programs in a lawsuit that, as of this writing, remains pending and has resulted in the temporary injunction of the President's initiatives. (6)

These events have drawn renewed attention to the President's power to shape the substance of immigration law through the exercise of his enforcement power. They have also reignited the longstanding controversy over whether any limits exist on this central source of executive authority. Both of these issues were at the heart of our previous work, The President and Immigration Law. (7) Published in these pages six years ago, that article provided a historical account of the distribution of immigration lawmaking authority between the President and Congress. Our core claim in that piece was that a series of twentieth-century developments-constitutional, historical, and institutional--had, as a functional matter, given the President tremendous power over the immigrant-screening system: power to determine which immigrants would be permitted to remain in the United States, and which would be forced to leave. (8) We labeled this constellation of developments "de facto delegation" and argued that it constituted one of the most important features of modern American immigration law.

Developments since we last wrote, culminating in President Obama's recent announcement, have both confirmed our earlier account and raised important new questions. While our previous work was mostly descriptive and historical, intervening developments have sharpened the legal and theoretical separation of powers questions raised by our argument. Moreover, whereas in 2009 we chiefly addressed the allocation of power between the branches in immigration law, the passage of time has highlighted the importance of power allocations within the Executive Branch for understanding the on-the-ground practice of presidential immigration law. Thus, this Article seeks to move beyond our earlier arguments in two ways - by squarely confronting the legal and normative questions about the President's power over immigration policy, and by carefully unpacking the "unitary" Executive to develop better purchase on these questions and on our earlier descriptive account of the President and immigration law.

This Article makes two central claims about the relationship between enforcement discretion and the separation of powers, both in immigration law and more generally. The first concerns the substantive limits on enforcement discretion: what (if anything) constrains executive branch choices about which immigrants will be protected through the exercise of enforcement discretion? The second concerns the institutionalization of that discretion: what (if anything) constrains executive branch choices about how to institutionalize the exercise of enforcement discretion within the bureaucracy? While we address these questions by focusing on the Obama relief initiatives, the questions themselves implicate broader separation of powers debates and will remain pressing even if opponents of the President's relief initiatives emerge victorious in the pending federal litigation. (9)

With respect to our first argument, we show that efforts to constrain the President's enforcement authority with reference to "congressional enforcement priorities"-an approach taken by both defenders and critics of the President--are doomed to fail. (10) We recognize the appeal of this approach. By tying the exercise of enforcement discretion to inferences about congressional intent drawn directly from immigration statutes, the Administration can claim to be acting as Congress's faithful agent, following the principal's wishes rather than making policy unmoored from the dictates of immigration law's elaborate statutory scheme. On this account, Congress makes the tough value judgments, not the President. He or she simply extracts those underlying value judgments from the statute through sophisticated legal analysis. The approach also provides a seemingly clear limiting principle to prevent the enforcement power from devolving into dispensation of the law -something that supporters of large-scale administrative relief had failed to provide until OLC shifted the tenor of the debate.

The trouble is that this faithful-agent model obscures the role that enforcement discretion plays in our modern system of separated powers. Even outside the immigration...