83 Pages Posted: 16 Aug 2016 Last revised: 14 Jun 2017
Date Written: August 15, 2016
This Article provides a framework for understanding the role of the President as administrator-in-chief of the executive branch. President Obama, in the face of heated controversy around immigration, relied on executive action in his agencies to advance policy. Which of these policies is legitimate, and which are vulnerable to challenge, will determine the legacy of these policies. This Article posits that the extent to which the president takes steps to enhance the procedural legitimacy of agency actions strengthens the legacy of the policies when confronted with controversy over their substance. This emphasis on shoring up administrative procedure is a form of expertise that should be counted alongside traditional normative criteria such as political accountability, democratic participation, and efficiency. Institutional analysis of three immigration policies elucidates President Obama’s attempt to strengthen the procedural legitimacy of substantively contentious policies: deferred action for long-term undocumented immigrants, immigration detention for immigrants with criminal histories, and priority docketing of recently-arrived immigrants seeking asylum. Interviews with DHS officials and other policymakers shed light on the internal dynamics of agency policies. The Article concludes with prescriptions for safeguarding the conditions under which executive action in immigration can be defended and rethinking the conditions under which it cannot.
Keywords: administrative law, immigration law, Constitutional law
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