The federal police forces that descended on Portland, Oregon, make it all too clear that the tactics at U.S. borders are being imported to the heartland. As the power and purview of the Department of Homeland Security expands, so do the battles over federal jurisdiction and immigration law. In their new book, The President and Immigration Law, law professors Adam Cox and Cristina Rodríguez engage in a fundamental reexamination of executive power over immigration law. They start at the nation’s founding and end at the current impasse over DACA, asylum policies, and Donald Trump’s wall on the Mexico border. The book, published by Oxford University Press, will be available on Kindle this week and in print on Sept. 1. In an interview conducted over email, we discussed how enforcement has become the central priority of the U.S. immigration system, with an empowered president sitting atop the massive immigration apparatus, sidelining a largely inactive Congress. In their view, this apparatus has opened the door to a regime in which law enforcement powers increasingly encroach on community life. Their answers have been edited and condensed for clarity.
Dahlia Lithwick: So the book starts with the provocative point that can be summed up essentially as, “Sorry, the executive branch really does have almost unlimited authority over immigration.” Can you start from the beginning and tell us how the public, on the left in the Trump era and on the right under Barack Obama, got this issue so wrong in your view?
Rodríguez: The dramatic immigration policies of the Obama and Trump administrations have led people across the ideological spectrum to lament that we have an executive run amok, circumventing a Congress unable to act. But the turn to administrative action is not just the result of our current partisan polarization, nor is it necessarily constitutionally abusive. Today, the president’s power stems from the simple fact that he sits atop a massive deportation machinery, under construction since the early 20th century and increasingly militarized and flush with resources since 9/11. Couple this machinery with the fact that the law makes anyone who lacks immigration status deportable—approximately 11 million people—and we see that the president is in charge of a massive shadow immigration system, with the authority and responsibility to determine who within it may stay and who shall be removed.
But even though the president’s power is broad, it is not unconstrained. The president and the immigration agencies still operate within the confines of federal statutes, as well as the Constitution. The Department of Homeland Security could not invent new grounds for deportation that Congress has not listed in the immigration code, for example. And even though some recent decisions of the Roberts court significantly weaken constitutional restraints on both Congress and the executive, principles of due process continue to cabin enforcement discretion.
In surveying the state of presidential immigration law, we point to numerous examples of executive actions that push against statutory limits: the Trump administration’s all-out assault on asylum law or its questionable interpretation of statutes authorizing redirection of military construction funds to the border wall comes immediately to mind. But it’s also important to understand that the legal edifice Congress has created actually authorizes much of Trump’s maximalist enforcement. In fact, the Trump administration is shining a light on wide-ranging and easy to exploit statutory delegations in immigration and beyond. It turns out that much of Trump’s abusive behavior is actually a joint project between the political branches. This is the case for the administration’s early ban on immigrants from several majority-Muslim countries, its expansion of summary deportation procedures, and even its drastic COVID-19 immigration restrictions.
And what role do the states play, say in the debate over sanctuary cities or, now, the president’s efforts to strip representation from areas with large immigrant populations?
Cox: State and local governments have tried to control immigrants and immigrant movement since the early days of the country. And they have never stopped importuning the federal government—sometimes to pass restrictive immigration laws or to enforce more aggressively, other times to facilitate immigration or to keep federal agents out of their jurisdictions. Before California became a sanctuary jurisdiction, it tried to exclude Chinese immigrants from its territory in the late 19th century and keep undocumented children out of its schools in the late 20th.
In the book, we tell the story of how the federal government has tried to consolidate its control over immigration policy by sidelining state and local governments. The Supreme Court has greatly assisted this ambition by repeatedly declaring that the Constitution assigns immigration enforcement exclusively to the federal government. And yet, state and local officials remain a thorn in the federal government’s side for at least two reasons.
The first is clearly political. Immigration has always been center stage in American politics, and local officials seek political advantage by opposing federal immigration policies, often when the opposite party occupies the presidency. Republican governors have challenged the Obama administration’s efforts to resettle refugees from Syria and passed their own enforcement laws. Democratic governors have nurtured the sanctuary movement by refusing to assist the federal government in immigration enforcement.
The second reason for local influence is more mundane and bureaucratic but no less consequential. The federal government depends deeply on state and local law enforcement agencies to help enforce federal immigration law. State and local agencies are far more likely than DHS to come into contact with deportable noncitizens, and state and local criminal justice systems are therefore enmeshed with the immigration enforcement bureaucracy. This integration gives local agents considerable power: They can feed the federal enforcement regime, or they can stymie it by refusing to cooperate.
The meat of your critique is of the “enforcement” model that is now predominating immigration policy. Can you describe what that means and how it works?
Rodríguez: President Obama, who initiated DACA and supported major immigration reform that included legalization of the unauthorized population as a whole, was also labeled deporter in chief because of the hundreds of thousands of immigrants removed during his time in office. This juxtaposition is not a sign of hypocrisy. Instead, it underscores the sheer scale of the enforcement zone in immigration law. As part of the same set of responsibilities, the president can extend major relief as a matter of grace while still presiding over the continual churning of the deportation machine.
An enforcement mindset ultimately colors all presidents’ approaches to immigration policy; the use and calibration of force are central to the system. The Obama administration’s response to the Central American refugee crisis at the Southern border perfectly reflects this. Senior officials ordered the detention of border crossers, including families with small children, in a conscious effort to deter future migrants with the threat of incarceration and to persuade some of those who had already arrived to abandon their asylum claims. The Trump administration took this enforcement approach to cruel and torturous new heights through its family separation policy. Across both administrations, the clash of the militarized border with migrants seeking protection has produced a humanitarian catastrophe with roots not just in the politics of the moment but also in the way enforcement has come to dominate immigration law and its administration.
So what do you say when CBP or ICE gets involved in what looks to be domestic policing, which we have seen at minimum in Portland? Is this a constitutional problem? A DHS problem? Or is it simply inevitable that what is lawful at the border eventually migrates into domestic policing?
Cox: What has happened in Portland appears to be an example of an administration enamored of law enforcement tools exploiting the powers Congress has clearly delegated to it. Under a federal statute, the Department of Homeland Security is expressly authorized to mobilize its officials, including those ordinarily assigned immigration functions, to assist in the protection of federal property. On the face of the law, this might seem like an unobjectionable power. But the statutory provision and the enormous law enforcement capacity it triggers underscore that DHS, by design, is not just about protecting the “homeland” from the outside but also about policing the interior. In other words, recent events are not about the border creeping into the interior but about how domestic law enforcement statutes can be distended.
The culture of DHS has also played a huge role in what has gone on. In our book, we write at length about the distilled enforcement mindset within the immigration enforcement bureaucracy, which since 9/11 has become increasingly militarized in its tools and ideology. Political officials at times have sought to curb that enforcement culture. But in the hands of current leadership, enforcement officials’ mission has expanded, and the statutes that authorize immigration police to take on other law enforcement functions have brought enforcement culture to political protests.
To be very clear, the fact that the administration can point to statutory authorization for the deployment of immigration officials to police the interior for nonimmigration reasons does not mean that the law enforcement actions in Portland have all been legal. Federal officials may well have exceeded their statutory authority by reaching beyond the protection of federal property. There is also reason to be concerned that they have violated protesters’ Fourth Amendment rights against unlawful search and seizure and possibly even First Amendment rights to peacefully assemble, as a recent lawsuit by Protect Democracy powerfully alleges.
One good thing about your framing is that the intractable immigration problems start to look like they could have solutions—political and nonlegal solutions—that could garner bipartisan support. Can you sketch out the fixes you envision?
Rodríguez: Political consensus in this domain has always been elusive, but we can do much better than our current system. The first step should be to shrink the enormous shadow immigration system that makes the logic of enforcement so central to immigration policymaking. We must adopt a legalization program, which would recognize in law what has for generations been understood informally—that many unauthorized noncitizens should not be deported. But real reform will also require new tools to prevent a similar unauthorized population from arising in the future. Advocates and reformers have long called for statutes of limitations on immigration offenses and for giving the executive the power to engage in rolling legalizations for settled immigrants. Congress must take these options seriously.
The second step would be to reimagine the executive’s expressly delegated powers—but not just to limit them. On the one hand, there are statutory fixes that we would support to make presidential power more accountable: We would cabin authority under INA Section 212(f), the suspension power on which President Trump relied for his travel ban and COVID-19 orders, by requiring that the president provide a strong factual basis for his assertion of the power to exclude in the interest of public safety. But we should also consider expanding the president’s formal role in admitting immigrants: If he is to be entrusted with the authority to exclude large groups of noncitizens pursuant to the suspension power, he should also be given clear authority to admit noncitizens to a legally secure (if temporary) status during times of crisis. Similarly, Congress should consider delegating to the executive branch a role in setting annual immigrant admissions numbers—a function until now performed only by Congress, leaving quotas calcified in statute without regard to changing circumstances around the world.
Reforms to these delegated authorities should also include changes to the powers of ICE and CBP, the immigration police. Some ideas include restricting by statute the policing techniques these agencies use in the border region (where the Supreme Court has historically imposed fewer Fourth Amendment constraints), shrinking the definition of the border region, and narrowing or even ending most immigration detention.
These are grand legislative ambitions. But even if Congress remains paralyzed, there is room for important reform. We also explore how best to manage the enforcement regime as it currently stands through creative use of checks internal to the executive branch. It would be a mistake to respond to the Trump administration by using constitutional doctrine to restrain the president’s ability to control enforcement policy. So long as the shadow system continues to exist, doing so would have disastrous consequences. Immigration policy would be rudderless, controlled by low-level agents rather than high-level officials whose actions are more accountable and transparent. With a president like Trump, we may wind up with enforcement priorities we abhor. But leaving these fundamentally political choices in the hands of a semi-militarized law enforcement culture would be worse.
We can only realize these many goals, of course, if we see the presidency as a constructive institution—one that is salvageable and worth saving. Our book is in a sense a call to rejuvenate the presidency, too. Understanding the history of presidential control over immigration law offers us a sometimes depressing, often hopeful, window into the possibilities for renewal.