69 Pages Posted: 2 Oct 2015
Date Written: September 30, 2015
In debates about presidential authority and policy innovation, scholars have focused on two overarching relationships — horizontal tension between the President and Congress and the vertical interplay of federal and state authority. These debates, however, have missed an important, yet obscured, arena in which innovative policymaking can take place. Low-level executive branch officials, exercising discretion delegated down throughout federal agencies, can promote solutions to policy problems that provide learning opportunities for the President and Congress. This Article uses the fertile arena of immigration to identify existing mechanisms and suggest reforms that would allow innovative work in the trenches to trickle up to the higher echelons, helping inform agency-wide decisions made at the top.
Ground-level immigration officials — including line officers, trial attorneys and judges — have been granted broad and vast discretion not to enforce the law in sympathetic and meritorious cases. Notwithstanding the predominant (and often correct) depiction of lower-level officers as an obstacle to policy innovation, many immigration bureaucrats have demonstrated willingness, and an ability, to place their discretion toward creative ends in a number of different removal contexts. In this Article, I argue that existing mechanisms for lower-level discretion can and should be harnessed to pair local laboratories of experimentation with opportunities for interchange throughout various levels of the Executive Branch. Rather than situate policy innovation through the lens of federalism or as a horizontal separation-of-powers conflict between the President and Congress, policymakers should consider how bottom-up influences within the agency might inform and help shape policy innovation.
The dialectic of bottom-up and top-down policymaking provides a useful counterweight to the conventional idea that a unitary executive is the exclusive way to energize federal bureaucrats to action. The inquiry into lower-level innovation also provides insights into debates about agency design, administrative constitutionalism, and federalism. Finally, the internal separations of power fashioned by lower-level experimentation can lend greater legitimacy to presidential deferred action programs — both in the federal courts and the court of public opinion.
Suggested Citation: Suggested Citation
Landau, Joseph Benjamin, Bureaucratic Experimentation and Immigration Law (September 30, 2015). Duke Law Journal, Vol. 65, 2016, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2667896