Abstract

http://ssrn.com/abstract=1356963
 
 

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The President and Immigration Law


Adam B. Cox


New York University School of Law

Cristina Rodriguez


Yale Law School

March 10, 2009

Yale Law Journal, Vol. 119, p. 458, 2009
U of Chicago, Public Law Working Paper No. 262
NYU School of Law, Public Law Research Paper No. 09-12

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.

Number of Pages in PDF File: 91

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

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Date posted: March 13, 2009 ; Last revised: August 13, 2014

Suggested Citation

Cox, Adam B. and Rodriguez, Cristina, The President and Immigration Law (March 10, 2009). Yale Law Journal, Vol. 119, p. 458, 2009; U of Chicago, Public Law Working Paper No. 262; NYU School of Law, Public Law Research Paper No. 09-12. Available at SSRN: http://ssrn.com/abstract=1356963 or http://dx.doi.org/10.2139/ssrn.1356963

Contact Information

Adam B. Cox (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
Cristina Rodriguez
Yale Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States

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