Federal Regulatory Policymaking and Enforcement of Immigration Law

Abstract

Since the executive branch is charged with the responsibility to enforce immigration laws, the executive has vast discretionary authority to enforce those laws in a manner that is comparable to Congress’s plenary power over immigration legislation. For example, the Supreme Court struck down a major section of Arizona’s anti-immigrant SB 1070 citing the provision’s interference with the executive’s authority. The basis for federal policymaking on enforcement — through executive action, prosecutorial discretion, or deferred action — is the recognition that the executive is the “one voice” that decides the appropriateness of whether a particular noncitizen should be subject to removal or deportation. One example is the Deferred Action Program for Childhood Arrivals (DACA). Whether the president’s broad deferred action programs are constitutional was left unanswered by a deadlocked Supreme Court in United States v. Texas (2016), leaving the precise answer to the question of the president’s authority for a later day. There is, however, a long history and tradition of the executive engaging in its own policymaking in enforcement of immigration laws. Sometimes, the immigration laws passed by Congress go too far or not far enough, and the executive exercises its discretion on behalf of affected individuals. Other times, Congress fails to act, and the executive compensates by acting on its own to soften enforcement on a case-by-case basis. Any of those discretionary actions seem to be appropriate. After all, since the executive branch is charged with the responsibility to enforce immigration laws, the executive has vast discretionary authority to enforce those laws in a manner that is comparable to Congress’s plenary power over immigration legislation.

Keywords: immigration law, immigration policy, migration, Arizona SB 1070, Deferred Action Program for Childhood Arrivals, D.A.C.A., United States v. Texas (2016), Congress, plenary power, legislation.