The President and Immigration Law
119 Yale L.J. 458 (2009).
The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has obscured a second important separation-of-powers question: how is immigration authority distributed between the political branches themselves? The Court’s jurisprudence has shed little light on this question. In this Article, we explore how the allocation of regulatory power between the President and Congress has evolved as a matter of political and constitutional practice. A long-overlooked history hints that the Executive has at times asserted inherent authority to regulate immigration. At the same time, the expansion 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 that the Executive’s power is asymmetric. 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, in certain circumstances, has pathological consequences that Congress could address by formally delegating power to the President to adjust the quotas and admissions criteria at the heart of immigration law.