When Donald Trump promised to make America great again during his 2016 presidential campaign, among many things, he was thinking of erecting a wall on the borders with Mexico and ban illegal immigration from many countries. Soon after entering the White House, he issued an executive order to deport illegal immigrants especially from six mostly Muslim majority countries. He also announced his plan to build a wall on the US-Mexico borders. His actions were challenged in the courts and the Congress, but he was not deterred. In February 2019, he announced an emergency on America’s southern border in order to prevent criminals and drugs from entering the country. As expected, the Democrat-majority Congress voted to overturn the declaration of emergency. The president reacted by issuing a veto to press ahead. In The President and Immigration Law, Adam B. Cox and Cristina M. Rodríguez, Robert A. Kindler Professor of Law at New York University School of Law and Leighton Homer Surbeck Professor of Law at Yale Law School respectively, argue that the clash with Congress reflected the deep gulf that now separates the Democratic and Republican parties on immigration policy. At the same time, the conflict also transcends partisanship, pitting Congress against the Executive in a battle for control over the border. Even the Republican-controlled Senate voted to reject the President’s emergency declaration.
Cox and Rodríguez recall that, similarly, when President Barack Obama announced that he would shield young unauthorized immigrants from deportation, the backlash was swift. Commentators, members of Congress, and even his own immigration enforcement agents criticized him for usurping the constitutional authority of Congress. Congress had already considered and rejected legislative protections for the so-called Dreamers. This decision, opponents argued, precluded the President from unilaterally protecting them. Even the President’s own Justice Department concluded that another of the President’s plans, to shield the parents of Dreamers, would violate the law because it deviated from the immigration priorities Congress had established.
The authors say that many of recent immigration controversies have been seen as power struggles between the political branches. Every time there is a controversy, the President’s detractors — both Democrats and Republicans– invoke the same constitutional wisdom — that control over immigration belongs in the hands of Congress. Cox and Rodríguez argue that this belief is a myth. They shows that the modern-day battles of the Obama and Trump reflect a deep historical truth about the structure of immigration policy-making: The President stands at its center. They show how the president became our immigration policymaker-in-chief.
Cox and Rodríguez say that the president’s extraordinary power over immigration policy today grows out of his utterly ordinary constitutional duty to enforce the law. As the controversy over the border wall shows, the logic and tools of enforcement define contemporary immigration policy. This dynamic, in turn, empowers the president and executive officials to shape the meaning of immigration law according to their own values and policy preferences. With its powers to legislate and appropriate, Congress sets parameters around the President’s actions and retains the authority to stymie or remake the policies advanced by an administration. They argue that by constructing an elaborate immigration code and building a sweeping deportation state over the course of the twentieth century, Congress counter-intuitively has transferred power to the Executive Branch to determine the metes and bounds of the polity, through discretionary judgments about whether and how to enforce the law. We call this phenomenon de facto delegation, and today it is at the heart of countless high-profile controversies over immigration policy.
The President and Immigration Law is a timely myth-busting study of a subject that has divided the nation right in the middle. Taking a unique scholarly take on the subject, Adam B. Cox and Cristina M. Rodríguez argue that initially the power to conduct immigration policy belonged to Congress but Congress has slowly delegated its right to make and implement immigration policy to the White House. Their clear-eyed analysis cuts through the messy constitutional history and controversies and presents a neutral, balanced view of the issue. In addition to providing insight and unique perspectives, they also stress the importance of bringing about constitutional reform. Adam B. Cox and Cristina M. Rodríguez once again prove they are the leading authorities on immigration law and history. It is a must-read to understand the current immigration controversy.