Lessons from The President and Immigration Law for a new administration
UPDATED 1/14/21 (earlier post 12/30/21 and here and here)
Earlier this year, ImmigrationProf Blog highlighted The President and Immigration Law (2020) by Adam Cox and Cristina Rodriguez. Since then the book has garnered widespread attention among academics and policymakers that may influence the incoming administration.
A Balkinization symposum examines the landscape of immigration federalism, the separation of powers, and administrative procedure for the assertion of executive power in immigration law. It does this in several essays by Pratheepan Gulasekaram (Santa Clara Law), Aziz Huq (University of Chicago), Peter Markowitz (Cardozo Law), Daphna Renan (Harvard Law), Shalev Roisman (University of Arizona), Bijal Shah (Arizona State University Sandra Day O’Connor College of Law), Peter Shane (Ohio State Moritz College of Law), and Robert Tsai (B.U.).
An online symposium on Just Security extends the lens of analysis to the generation of national immigration policy, with essays from former government officials and immigration practitioners such as Lucas Guttentag (ACLU Immigrants Rights Project, previously US Citizenship and Immigration Service), Alan Bersin (Covington & Burling), Tom Jawetz (Center for American Progress), Josiah Heyman (Center for Interamerican and Border Studies), Margo Schlanger (University of Michigan, formerly US Department of Homeland Security), Nicholas Espiritu (University of California Los Angeles). UPDATE 1/3/2021: The list of symposium contributors has been updated.
A Migration Policy Institute webinar and podcast featuring the authors in conversation with Elena Goldstein, Deputy Bureau Chief, Civil Rights Bureau, New York State Office of the Attorney General, and Sarah Pierce, Policy Analyst, Migration Policy Institute examines the Trump administration’s substantial use of executive power to change the country’s course on immigration, and how the president’s role in immigration policy is a inevitability that should be carefully considered and reimagined in any blueprint for immigration reform or strategy for activism on immigration.
A sneak peak of my book review, “Lessons from History on the Future of Presidential Policymaking in Immigration Law,” appears below (edited for length and clarity). The full-length review will appear in The New Rambler in 2021. UPDATE 1/14/21: The full book review is now posted.
Review of The President and Immigration Law (by Adam Cox and Cristina Rodriguez)
The President and Immigration Law offers a historically-grounded, doctrinally-precise description of issues that began at the Founding and have continued during the Obama administration and the Trump administration. Of late, these issues have been overtaken by partisan politics. Scholarly and political opinions abound without establishing a sound foundation. But it is on the foundation of history and legal analysis that Cox & Rodriguez offer their normative assessment of executive policymaking through the exercise of enforcement discretion. The translation of deep scholarly analysis into smart on-the-ground analysis of policy implementation – how to get things done – is where the authors will make a real practical difference. They are able to interpret the lessons from history for the future of presidential policy.
As someone who writes at the intersection of immigration and administrative law, I especially appreciate the authors’ effort to go beyond the contestation of the President versus Congress to delve deeper into the relationship of the president and bureaucracy. The immigration bureaucracy is the arms and legs beneath the executive head. The details of how the bureaucracy implements policy is where the authors’ normative ideals will gain the most traction. Comparing different styles of immigration enforcement under multiple administrations will be useful to the Biden administration. The initial tasks in Biden’s promise to “build back better” are clear. Executive authority can be used to reverse the priorities in immigration enforcement right away. Yet doing this effectively involves nuanced assessments of the administrative apparatus of immigration law. On the one hand, reversing many Trump policies will be quick and easy with the continued use of executive authority to regain control of the immigration bureaucracy. But on the other hand, institutionalizing these changes in a centralized mechanism of enforcement will require navigating the nuances of administrative procedure.
Going further to transform immigration policy will require Congress’ cooperation. The full extent of what is possible in a Biden administration depends on political conditions. Those political conditions will determine whether Comprehensive Immigration Reform is possible after nearly a decade of failed attempts. It is not up to Biden alone to define what is politically possible. But the parameters of what is theoretically possible is clear from Cox & Rodriguez’s book.
MHC