The President and Immigration Law

Abstract

For decades, immigration law and scholarship has been preoccupied with limits on the power of courts to police immigration policy. But the focus on this separation-of-powers question has obscured a second: how is immigration authority distributed between the political branches themselves?

In this Article, we explore how the allocation of immigration power between the President and Congress has evolved as a matter of historical practice and constitutional law. A long-overlooked history hints that the President has at times asserted inherent executive authority to regulate immigration. At the same time, the explosive growth of the administrative state has assimilated most executive policymaking into a model of delegated authority. The intricate immigration code associated with this delegation framework may appear at first glance to limit the President’s policymaking discretion. In practice, however, the modern structure of immigration law actually has enabled the President to exert considerable control over immigration law’s core question: which types of noncitizens, and how many, should be permitted to enter and reside in the United States?

Whether Congress intended for the President to have such freedom is less important than understanding the breadth of the Executive’s power and its asymmetric nature. The President has considerable authority to screen immigrants at the back end of the system, through enforcement decisions, but minimal control over screening at the front end, before immigrants enter the United States. We argue that this asymmetry may sometimes have pathological consequences -- consequences Congress could mitigate by formally delegating power to the President to adjust the quotas and admissions criteria at the heart of immigration law.

Keywords: immigration, separation of powers, executive authority, Presidential power, historical practice, illegal immigration