The president and immigration law

Yale Law Journal

Volumn 119, Issue 3, 2009, Pages 458-547

  Cox, Adam B ^a   Rodríguez, Cristina M ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 77749274399     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (313)

1. See Chae Chan Ping v. United States (Chinese Exclusion Case), 130 U.S. 581 (1889); infra Section I.A.
2. To the extent that scholars have discussed this interbranch dynamic, they have generally assumed that, "[s]ince the passage of the first federal immigration legislation in 1875, it ha[s] been universally understood that Congress-and not the President-possessed the constitutional authority to set conditions for entry and to fix quota numbers." GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES & AMERICA'S HALF-OPEN DOOR 56 (1986); cf. Stephen H. Legomsky, The Making of United States Refugee Policy: Separation of Powers in the Post-Cold War Era, 70 WASH. L. REV. 675, 676 (1995) (describing a pattern of increased congressional control over immigration and highlighting the "one gaping exception" as the Refugee Act of 1980, in which "Congress virtually wrote the President a blank check to decide how many overseas refugees to admit and which ones").
3. The Chinese Exclusion Case was decided just six years before United States v. E. C. Knight Co., 156 U.S. 1 (1895), a widely-known piece of the constitutional law canon in which the Supreme Court limited the federal government's authority to regulate monopolies through a narrow interpretation of the Commerce Clause.
4. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from egislative power but is inherent in the executive power to control the foreign affairs of the nation.").
5. See, e.g., INS v. Chadha, 462 U.S. 919 (1983).
6. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).
7. Throughout the Article, we invoke both the "President" and the "Executive," often interchangeably. In so doing, we neither mean to suggest that the executive branch is unitary, nor attempt in any great detail to identify points of conflict or interaction among the various executive branch agencies that perform immigration functions-a set of relationships that ought to be investigated in future work. In this Article, our concern rests primarily with the dynamics between the political branches, not within them.
8. We mean for the idea of immigrant types to be understood in the most catholic sense possible. Conventionally, of course, the core question we identify above is implicated by the three main categories into which contemporary immigration law is commonly divided: labor-based immigration, family-based immigration, and refugee admissions. While we focus primarily on family and labor migration, we do explore what the existence of the overseas refugee regime suggests about the separation-of-powers question that motivates this Article. See infra notes 161-166 and accompanying text.
9. See infra Sections II.A., II.B.
10. The regime for screening refugees and admitting asylum claimants can be conceptualized as distinct from the system according to which immigrants are admitted for permanent residence based on family or labor-related preferences. Indeed, as we discuss in Part III of this Article, the former operates as a kind of parallel admissions track to the latter, and the admission of refugees and asylum claimants is managed primarily by the Executive, to whom the 1980 Refugee Act gives screening authority over refugees. The Executive also oversees the Bureau of Immigration Appeals and the immigration judges who adjudicate most asylum claims within the Department of Justice, subject to review by the Courts of Appeals. One of our goals in this Article is to map the ways in which the Executive and Congress share responsibility for screening immigrants for admission generally, and to illuminate both the tensions and advantages of shared authority. As will become clear, the participation of the Executive in the screening of immigrants for admission in the refugee and asylum systems underscores both that de jure executive screening is more likely to arise when foreign policy or national security concerns are directly implicated, and that executive screening is not an anomaly in our system.
11. The immigration laws of the United States are principally organized in the Immigration and Nationality Act (INA). The basic organization of the Act was first adopted in the INA of 1952, also known as the McCarran-Walter Act. See Pub. L. No. 82-414, 66 Stat. 163. Major amendments followed in 1965, 1986, 1990, and 1996, but the basic organization of the statute has remained largely unchanged. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009; Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359; Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911. Today the Act is codified at INA §§ 101-507, 8 U.S.C. §§ 1101-1537 (2006).
12. In this fashion, immigration policymaking shares much in common with Bill Stuntz's account of modern criminal law. As Stuntz has argued persuasively, the expansion of criminal codes over the past half-century has dramatically shifted the locus of authority away from legislatures and towards prosecutors
13. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001). His account has reoriented criminal law scholarship and generated a new and powerful critique of the system. Yet our story, which in some ways entails an even starker shift of authority, has gone largely unnoticed and, as a consequence, has escaped assessment.
14. For a more extended argument about the way in which ex ante and ex post screening are substitutes
15. Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809 (2007).
16. 130 U.S. 581 (1889).
17. Chae Chan Ping also argued that the statute violated the United States's treaty obligations to China. See id. at 589.
18. See id. at 609 ("Whether a proper consideration by our government of its previous laws, or a proper respect for the nation whose subjects are affected by its action, ought to have qualified its inhibition and made it applicable only to persons departing from the country after the passage of the act, are not questions for judicial determination.").
19. See id. at 609 ("Whether a proper consideration by our government of its previous laws, or a proper respect for the nation whose subjects are affected by its action, ought to have qualified its inhibition and made it applicable only to persons departing from the country after the passage of the act, are not questions for judicial determination.").
20. See id. at 607.
21. To be sure, even outside the immigration context the idea of fusing the executive and legislative functions is not anomalous in U.S. history. As Daryl Levinson and Rick Pildes have observed, for the first forty years of our history, "American government effectively operated... with a congressionally dominated fusion of legislative and executive powers."
22. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2321 (2006).
23. This relationship was a function of the fact that credible presidential candidates came to be identified through party caucuses in Congress, thus giving Congress a major role in selecting the President. See id. at 2321. The rise of Andrew Jackson and his populist brand of campaigning and government-a rise enabled by the pressure for popular control of the nominations process and the erosion of the electoral college's power- effectively made the Presidency "one of three equal departments of government." Id. at 2322 (quoting EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1957, at 21 (4th ed. 1957)). Nonetheless, essentially all of what we recognize as the immigration law canon emerged well after the Jacksonian period; the era of Chinese exclusion followed this period by more than fifty years. It is therefore unlikely that this early tradition explains the Court's approach in the plenary power cases.
24. In discussing the Court's lack of authority to pass judgment on the motives of the political branches, the Court explained, We do not mean to intimate that the moral aspects of legislative acts may not be proper subjects of consideration. Undoubtedly they may be, at proper times and places, before the public, in the halls of Congress, and in all the modes by which the public mind can be influenced. Public opinion thus enlightened, brought to bear upon legislation, will do more than all other causes to prevent abuses; but the province of the courts is to pass upon the validity of laws, not to make them. Chae Chan Ping, 130 U.S. at 603.
25. See, e.g., Henderson v. Mayor of New York, 92 U.S. 259 (1876) (striking down New York and Louisiana laws that required shipmasters to pay fees or post bonds to indemnify states if immigrants ended up on public assistance, on the ground that the laws interfered with Congress's power to regulate interstate commerce); Chy Lung v. Freeman, 92 U.S. 275 (1875) (striking down a California law regulating the entry of, among others, "lewd and debauched women," on the ground that the law interfered with Congress's exclusive power to regulate the admission of noncitizens); The Passenger Cases, 48 U.S. (7 How.) 283, 447-50, 453 (1849) (striking down New York and Massachusetts laws that levied fees on arriving immigrant passengers but relying on various rationales, including that fees constituted unconstitutional regulations of foreign commerce).
26. See GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 19-49 (1996) (discussing the centrality of state regulation during the first two-thirds of the nineteenth century, as well as the federalism concerns raised by the possibility of federal immigration regulation).
27. 156 U.S. 1 (1895).
28. Chae Chan Ping, 130 U.S. at 606.
29. Id. at 604 (listing the powers to "declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the States, and admit subjects of other nations to citizenship"). The treaty power is the only power listed that is granted to the President. See U.S. CONST. art. II, § 2 ("[The President] shall have [the] Power, by and with the Advice and Consent of the Senate to make Treaties....").
30. See Chae Chan Ping, 130 U.S. at 608; see also Fong Yue Ting v. United States, 149 U.S. 698, 705-09 (1893) (relying on the same sources of authority to affirm Congress's power to deport noncitizens).
31. In 1868, China and the United States signed a treaty that recognized "the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects, respectively, from the one country to the other, for purposes of curiosity, of trade, or as permanent residents." Additional Articles to the Treaty Between the United States and China of June 18, 1858, U.S.-P.R.C., July 28, 1868, 16 Stat. 739, 740, cited in Chae Chan Ping, 130 U.S. at 592-93. In 1880, this treaty was amended to permit the United States to impose temporary restrictions on the immigration of Chinese laborers. Treaty Concerning Immigration, U.S.-P.R.C., art. I, Nov. 17, 1880, 22 Stat. 826, 826. But the 1880 amendments preserved the rights of resident Chinese immigrants to come and go from the United States. Congress initially complied with this condition, though it required immigrants to obtain reentry certificates in order to reenter after traveling abroad. Id. at art. II, 22 Stat. 827. In the fall of 1888, however, Congress passed a statute providing that no Chinese laborer who left the United States would be permitted to return, regardless of whether he possessed a reentry certificate. This was the statutory provision at issue in Chae Chan Ping.
32. Chae Chan Ping, 130 U.S. at 600 (noting that "[i]t will not be presumed that the legislative department of the government will lightly pass laws which are in conflict with the treaties of this country").
33. In reality, there does not appear to have been much actual tension between the President and Congress over the 1888 Act. After the President negotiated an amendment to the Burlingame Treaty in 1880, providing that if the entrance of Chinese laborers threatened the good order of the United States, then the United States had the authority to "regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it," id. at 596, Congress initially passed a bill that would have stopped Chinese laborers from entering for twenty years. The President vetoed the bill on the ground that the period was too long, and Congress then passed the first Chinese Exclusion Act suspending the entry of Chinese laborers for ten years, which the President then signed
34. LUCY. E. SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW 15 (1995). By the fall of 1888, the President began attempting to negotiate further amendments with China.
35. The so-called Bayard-Zhang Treaty would have extended Chinese exclusion for twenty years and prohibited reentry by most immigrants who left to visit China (unless the laborers had assets worth at least $1000 or immediate family living in America). The treaty also continued the obligation of the U.S. government to protect Chinese people and property in the United States. See id. at 21-22. Congress then passed an act in September of 1888, Act of Sept. 13, 1888, ch. 1015, 25 Stat. 476, that would have expanded Chinese exclusion, but it was effective only on ratification of the Bayard-Zhang Treaty. This history thus suggests a coordinated effort by the President and Congress to secure simultaneously an international agreement and enabling domestic legislation. It was only after the Chinese government refused to ratify the treaty that Congress passed the Scott Act prohibiting re-entry of Chinese laborers, regardless of whether they possessed a re-entry certificate.
36. The Court wrote: But notwithstanding these strong expressions of friendship and good will, and the desire they evince for free intercourse, events were transpiring on the Pacific Coast which soon dissipated the anticipations indulged as to the benefits to follow the immigration of Chinese to this country.... Whatever modifications have since been made to [the general provisions of the treaties] have been caused by a well-founded apprehension-from the experience of years-that a limitation to the immigration of certain classes from China was essential to the peace of the community on the Pacific Coast, and possibly to the preservation of our civilization there...... As they grew in numbers each year the people of the coast saw, or believed they saw, in the facility of immigration, and in the crowded millions of China, where population presses upon the means of subsistence, great danger that at no distant day that portion of our country would be overrun by them unless prompt action was taken to restrict their immigration. Chae Chan Ping, 130 U.S. at 593-95.
37. Id. at 607 (emphasis added). In fleshing out the sovereign right to exclude, the Court referred to a number of such communications between secretaries of state and foreign ambassadors.
38. 149 U.S. 698 (1893).
39. Id. at 709.
40. According to Blackstone, however, the King had no such power. "[N]o power on earth, except the authority of parliament, can send any subject of England out of the land against his will.... For exile, or transportation, is a punishment unknown to the common law; and, whenever it is now inflicted, it is... by the express direction of some modern act of parliament." 1 WILLIAM BLACKSTONE, COMMENTARIES *133.
41. Fong Yue Ting, 149 U.S. at 709.
42. Id. at 711-13.
43. Id. at 709.
44. Id. at 708.
45. See, e.g., William J. Novak, The Legal Origins of the Modern American State, in LOOKING BACK AT LAW'S CENTURY 249 (Austin Sarat et al. eds., 2002); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1725-29 (2002) (discussing different conceptions of delegation).
46. Fong Yue Ting, 149 U.S. at 714.
47. Fong Yue Ting, 149 U.S. at 762 (Fuller, C.J., dissenting).
48. 142 U.S. 651 (1892).
49. 189 U.S. 86 (1903).
50. See, e.g., Ng Fung Ho v. White, 259 U.S. 276 (1922); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); United States v. Ju Toy, 198 U.S. 253 (1905); Lem Moon Sing v. United States, 158 U.S. 538 (1895).
51. Yamataya answers this question in the affirmative for deportation proceedings, overruling contrary suggestions in Fong Yue Ting. See Yamataya, 189 U.S. at 99-101.
52. This observation means, of course, that separation-of-powers discussions (and assumptions) in early immigration cases were often bound up with larger debates about the scope of the national government's authority and the shape of the administrative state. Several 1920s cases, for example, implicitly assume that the President's immigration authority derives from congressional delegations. See, e.g., Mahler v. Eby, 264 U.S. 32 (1924); Ng Fung Ho v. White, 259 U.S. 276 (1922). Given the context and timing of these cases, it may be that this assumption was partially motivated by a desire to enforce a more robust conception of the nondelegation doctrine. See, e.g., Mahler, 264 U.S. at 43-45.
53. 338 U.S. 537 (1950).
54. Id. at 542.
55. Id. at 542.
56. 299 U.S. 304, 320 (1936) (rejecting a delegation challenge to a congressional resolution authorizing the President to prohibit the sale of arms to Bolivia if he found that such a ban would contribute to peace in the region on the grounds that the nondelegation doctrine was inapposite in the foreign affairs context).
57. Moreover, one can find passing references to the idea of exclusive legislative authority over immigration even earlier. See, e.g., Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339-40 (1909).
58. 347 U.S. 522 (1954).
59. Id. at 531 (citations omitted).
60. 408 U.S. 753, 766-67 (1972).
61. 430 U.S. 787, 792 (1977).
62. Fiallo, 430 U.S. at 792-93 & n.4 (quoting Galvan v. Press for the proposition that "the formulation of these [immigration] policies is entrusted exclusively to Congress"); Kleindienst, 408 U.S. at 767 (same).
63. See also cases cited supra note 44.
64. 462 U.S. 919, 940-41 (1983) (citations omitted).
65. 426 U.S. 88 (1976).
66. Id. at 103.
67. Id. at 117, 123 ("The Court, while not shaping its argument in these terms seems to hold that the delegation here was faulty. Yet, it seems to me too clear to admit of argument that under the traditional standards governing the delegation of authority the Civil Service Commission was fully empowered to act in the manner in which it did in this case.") (Rehnquist, J., dissenting). It is worth noting that the due process of lawmaking doctrine the Court articulates in Hampton has become an administrative law relic and has not been applied or developed in subsequent cases. Indeed, the doctrine seems to have been developed in the case to provide a structural argument for invalidating a federal rule disadvantaging aliens that could not be challenged using equal protection doctrine, given the Court's then-recent decision in Mathews v. Diaz, 426 U.S. 67 (1975) (holding that rational basis review applies to distinctions drawn by the federal government with respect to aliens).
68. Mow Sun Wong, 426 U.S. at 103 (emphasis added).
69. Id. at 116 (finding evidence of congressional and presidential awareness of the restriction under several different administrations, but still concluding that the CSC's rule could not be justified by concerns that were properly of the CSC).
70. Were this true, however, it is difficult to explain the Court's holding. As the dissent points out, the Court used procedural due process as a "scalpel with which one may dissect the administrative organization of the Federal Government." Mow Sun Wong, 426 U.S. at 121 (Rehnquist, J., dissenting). The dissent took a much more straightforward administrative law view of the case, discussing the case in terms of the legislature's delegation of authority to administrative agencies. Id. at 122. The dissent argued that the only way to challenge the rule is by arguing that there was an improper delegation of authority. Despite the Court's suggestion to the contrary, the dissent emphasized that the CSC was fully empowered to act as it did in this case. Id. at 123.
71. Another alternative is that the Court was enforcing a sort of nondelegation canon, requiring the President to be more specific on the ground that he cannot delegate the sensitive question of a citizenship requirement to agency officials. For a discussion of this possibility, see Adam B. Cox, Deference, Delegation, and Immigration Law, 74. U. CHI. L. REV. 1671, 1674- 77 (2007).
72. Exec. Order No. 11,935, 41 Fed. Reg. 37,301 (Sept. 2, 1976) (establishing that "[n]o person shall be given any appointment in the competitive service unless such person is a citizen or national of the United States" and citing as authority "the Constitution and statutes of the United States of America, including Sections 3301 and 3302 of Title 5 of the United States Code").
73. See Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978).
74. 543 U.S. 335 (2005).
75. Id. at 348.
76. Id. at 368 (Souter, J., dissenting).
77. INS v. Abudu, 485 U.S. 94, 110 (1988) ("[A]lthough all adjudications by administrative agencies are to some degree judicial and to some degree political... INS officials must exercise especially sensitive political functions that implicate questions of foreign relations, and therefore the reasons for giving deference to agency decisions on petitions for reopening or reconsideration in other administrative contexts apply with even greater force in the INS context."). In Abudu, the Court held that the denial of a motion to reopen that was not timely filed was not subject to an abuse of discretion standard on review. Id. at 111. The Court's conclusion that the BIA is entitled to attach significance to the untimeliness of a petition reads like a non sequitur after its observation that immigration officials exercise particularly sensitive political functions, because the former rationale stems from concerns regarding the conservation of judicial and administrative resources, not foreign policy or related judgments. For an account of the variety of standards of deference the Court employs in administrative law, including the heightened deference in immigration cases
78. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L. J. 1083 (2008).
79. 526 U.S. 415 (1999).
80. 8 U.S.C. § 1253(h)(2)(c) (1996).
81. 526 U.S. at 421-22.
82. Id. at 422.
83. See Aguirre-Aguirre v. INS, 121 F.3d 521, 524 (9th Cir. 1997).
84. 526 U.S. at 424-25. In its brief to the Court, the government emphasized that the traditional reasons for deference are "magnified" in the immigration context. The Ninth Circuit had suggested that factors such as whether violence was necessary to advance an agenda should be taken into consideration in determining whether Aguirre-Aguirre's acts were out of proportion to his political ends. The government underscored its argument for deference by emphasizing the strong policy reasons that counseled against compelling the Attorney General to weigh the perceived necessity and success of violence. The government took the position that to announce that violence was necessary in a certain country to secure change would be to risk inciting further violence, which in turn would have foreign policy implications for the United States. See Brief of Petitioner-Appellant at 19-22, INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (No. 97-1754).
85. This possibility arises in two of the case studies we explore in Part II of this Article. Presidents Roosevelt and Truman arguably claimed authority to launch and maintain a temporary worker program without explicit authorization by Congress for the particular program they adopted (and perhaps even in the face of an explicit congressional rejection of the program), and President Reagan's Department of Justice cited the President's inherent authority as justification for managing the Haitian refugee crisis, even as the executive branch also claimed statutory authorization for its actions.
86. For a similar approach in another arena, see David J. Barron & Martin S. Lederman, TheCommander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689 (2008) (studying the history of executive-congressional interaction in the context of war-making and national security-related regulation).
87. See, e.g., HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 16-17 (2006) (discussing the treaty arrangements between the United States and China that shaped the development of early admissions policy). For a discussion of the role states played in regulating immigration in the nineteenth century
88. Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1841-83 (1993).
89. See, e.g., Immigration Act of 1907, ch. 1134, 34 Stat. 898.
90. See JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (2002) (discussing the development of the national origins quota system).
91. ARISTIDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 216 (2006) (noting President Taft's veto of immigration legislation, including a literacy test)
92. see also id. at 227 (noting President Cleveland's veto on March 2, 1897, accompanied by a veto message that acknowledged the necessity of "protecting our population against degeneration" brought on by immigration but declaring the literacy test an unsuitable screening mechanism on the ground that it was "more safe [sic] to admit a hundred thousand immigrants... unable to read and write... than to admit one of those unruly agitators and enemies of governmental control... [who] delights in arousing by inflammatory speech the illiterate...."). For an account of the shifting political coalitions in the debate over immigration restriction in the early twentieth century, see Claudia Goldin, The Political Economy of Immigration Restriction in the United States, 1890 to 1921, in THE REGULATED ECONOMY: A HISTORICAL APPROACH TO POLITICAL ECONOMY 223 (Claudia Goldin & Gary D. Libecap eds., 1994).
93. See ZOLBERG, supra note 83, at 240 (noting that Wilson insisted after both vetoes that "the literacy test in effect penalized a lack of opportunity in the country of origin" and after his second veto argued that allowing immigration officials to pass judgment on the policies of foreign governments would lead them to perform "a most invidious function" that could cause diplomatic problems).
94. Of course, the fact that President Bush never claimed such authority does not mean that no one has contemplated other strategies to manage the admission of temporary workers. Some participants in the debate have suggested that the United States execute a bilateral labor migration agreement with Mexico, which would not require the same two-thirds approval of the Senate as a treaty
95. Marc R. Rosenblum, The United States and Mexico: Prospects for a Bilateral Migration Policy (Mar. 8, 2007), http://borderbattles.ssrc.org/Rosenblum/ (detailing the history of U.S.-Mexico bilateral cooperation and addressing obstacles to forging a bilateral agreement in today's climate)
96. In addition, in the final year of the Bush Administration, the Department of Homeland Security made rulemaking noises, considering whether to expand the reach of temporary worker programs and substantially changing the policy course of the H-2A and H-2B programs. See Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 Fed. Reg. 49,109 (Aug. 20, 2008) ("Under the proposed rule, a job would be defined to be temporary where the employer needs a worker to fill the job for a limited period of time. The term 'limited period of time' is in turn defined as a period of need that will end in the near, definable future."); Changes to Requirements Affecting H-2A Nonimmigrants, 73 Fed. Reg. 76,891 (Dec. 18, 2008) (lengthening the time a temporary worker may remain in the U.S. after a visa has expired, shortening the time during which a worker with an expired visa must be out of country before becoming eligible for a new visa, adjusting salary formulas, and easing requirements for employers to demonstrate that they have recruited U.S. workers). The Obama Department of Labor proposed to rescind the new H-2A rule for nine months. See 74 Fed. Reg. 11,408 (Mar. 17, 2009).
97. During the war, growers wrote Congress requesting that immigration policy be modified to permit "limited migration of Mexican workers." WAYNE D. RASMUSSEN, U.S. DEP'T OF AGRIC., BUREAU OF AGRIC. ECON., A HISTORY OF THE EMERGENCY FARM LABOR SUPPLY PROGRAM, 1943-1947, at 200 (1951). The California USDA war board also recommended to the U.S. Department of Agriculture investigating the possibility of importing temporary labor from Mexico. Id. For a discussion of the changes to immigration policy that increased this pressure, see MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA (2004).
98. ERNESTO GALARZA, MERCHANTS OF LABOR: THE MEXICAN BRACERO STORY 41-45 (1964).
99. Members of Congress also recognized the possibility of addressing wartime labor needs through the importation of guest workers
100. Marc R. Rosenblum, At Home and Abroad: The Foreign and Domestic Sources of U.S. Immigration Policy 50 (2000) (unpublished Ph.D dissertation, University of California, San Diego) (on file with authors).
101. See DEAN ALBERTSON, ROOSEVELT'S FARMER: CLAUDE R. WICKARD IN THE NEW DEAL 287 (1961).
102. The INS had been relocated to the Justice Department just a few years earlier by President Roosevelt.
103. See KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S. 19 (John Brigham & Christine B. Harrington eds., 1992).
104. See ALBERTSON, supra note 89, at 287; CALAVITA, supra note 91, at 2.
105. See Rosenblum, supra note 88, at 236. For a discussion of Mexico's involvement in the initiation and maintenance of the Bracero Program, see DAVID FITZGERALD, A NATION OF EMIGRANTS: HOW MEXICO MANAGES ITS MIGRATION 48-55 (2009).
106. Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 878. The Ninth Proviso was one of several exceptions appended to the end of Section 3 of the Immigration Act of 1917, which set forth the categories of inadmissible aliens. This exception to the general grounds of inadmissibility created, perhaps for the first time in American immigration history, a formal category of temporary admission for noncitizens. On its face, the Ninth Proviso does not appear to authorize the admission of large numbers of unskilled agricultural workers. Moreover, the Rules adopted by the Department of Labor to implement the Ninth Proviso suggest that it was designed principally for the temporary admission of individual applicants for whom "urgent necessity or... unusual and grave hardship would result from a denial of their request." U.S. DEP'T OF LABOR, BUREAU OF IMMIG., IMMIGRATION LAWS: RULES OF MAY 1, 1917, at 58 (4th ed. 1920). Nonetheless, it appears that the Proviso was added to the Act in part at the urging of agricultural employers who feared that the Act's literacy requirements and head tax provisions would render most of their workers inadmissible. See OTEY M. SCRUGGS, BRACEROS, "WETBACKS," AND THE FARM LABOR PROBLEM: MEXICAN AGRICULTURAL LABOR IN THE UNITED STATES, 1942-1954, at 76 (1988); see also DAVID GRIFFITH, AMERICAN GUESTWORKERS: JAMAICANS AND MEXICANS IN THE U.S. LABOR MARKET 31-32 (2006) (noting that Congress passed the Act of 1917 under pressure from agricultural interests, who feared "labor shortages with men leaving the fields for wartime service and industrial production" as the result of World War I). And during the tail end of World War I, the Department of Labor did adopt orders authorizing the temporary admission of Mexican agricultural workers. See U.S. IMMIG. SERIAL BULL., June 1, 1918, at 1-4 (containing Departmental Order No. 52461/202, authorizing the "temporary admission of certain alien laborers from Mexico"); SCRUGGS, supra, at 76-86. Perhaps as a result of this World War I-era activity, some modern scholars have assumed that the Ninth Proviso provided statutory authority for Roosevelt's program as well. See, e.g., BILL ONG HING, DEFINING AMERICA THROUGH IMMIGRATION POLICY 126 (2004) (assuming that the Ninth Proviso provided the authority for the Bracero Program in 1942, as well as for the continuation of the program after 1947 when congressional authorization expired). But we have been unable to find any evidence that the administration actually invoked this provision as a source of authority in 1942. More importantly, the fact that the administration sought authorization from Congress just a few months after initiating the program complicates the assumption scholars have made about statutory authority.
107. Act of Apr. 29, 1943, Pub. L. No. 45, 57 Stat. 70.
108. See Act of Apr. 28, 1947, Pub. L. No. 40, 61 Stat. 1939.
109. See Act of Apr. 28, 1947, Pub. L. No. 40, 61 Stat. 1939.
110. See CALAVITA, supra note 91, at 30.
111. See Act of July 12, 1951, Pub. L. No. 78, 65 Stat. 119.
112. See James F. Creagan, Public Law 78: A Tangle of Domestic and International Relations, 7 J. OF INTER-AM. STUD. 541, 542 (1965). President Truman also expressed concern about the failure of executive agencies to protect the guaranteed rights of the Mexican workers, observing at the end of the War that because of "the return to a normal peacetime labor market the danger of violations will be much greater than in recent years." Message to the Congress Transmitting Reorganization Plan 2 of 1947, 1947 PUB. PAPERS 229 (May 1, 1947); see also Special Message to the Congress on the Employment of Agricultural Workers from Mexico, 1951 PUB. PAPERS 389 (July 13, 1951) ("[B]oth this Government and the Mexican Government have become increasingly concerned about violations of the contract terms under which Mexican citizens are employed in this country. We must make sure that contract wages will in fact be paid, that transportation within this country and adequate reception centers for Mexican workers will in fact be provided.").
113. See PETER NEIL KIRSTEIN, ANGLO OVER BRACERO: A HISTORY OF THE MEXICAN WORKERS IN THE UNITED STATES FROM ROOSEVELT TO NIXON (1977).
114. CALAVITA, supra note 91, at 25. Indeed, this alternative could explain much of Congress's behavior in the immigration arena historically, such as its failure over the last decade to address the growing phenomenon of illegal immigration. This failure arguably reflects an acceptance of the Executive's underenforcement (of IRCA in particular) as an alternative to addressing the problem legislatively, either through legalization and expanded legal channels of entry, or shifts in the design and allocation of resources toward interior enforcement.
115. The assumption that such power existed may have been bolstered, of course, by the idea that the President was responding to a war-related emergency. Though it is true that the war had long since ended by 1948, the Truman Administration's continuation of the Bracero Program despite Congress's refusal to reauthorize the worker program could have reflected, in part, the overhang of wartime expansion of executive power, with policy consequences that reached well beyond wartime concerns. In the context of World War II-era litigation challenging the President's authority under the Enemy Aliens Act of 1798 to summarily remove enemy aliens after the formal end of the war-an authority the Court confirmedthe Court, in a sense, recognized this sort of overhang. It acknowledged that the tools needed by the Executive to address wartime exigencies may be properly used even after the cessation of hostilities and expressed reluctance to second-guess judgments committed to the political branches. See Ludecke v. Watkins, 335 U.S. 160, 166 n.10 (1948) ("The cessation of hostilities does not necessarily end the war power.... [T]he war power includes the power to remedy the evils which have arisen from its rise and progress and continues during that emergency. Whatever may be the reach of that power, it is plainly adequate to deal with problems of law enforcement which arise during the period of hostilities but do not cease with them.").
116. See Christopher Mitchell, U.S. Policy Toward Haitian Boat People, 1972-93, 534 ANNALS AM. ACAD. POL. & SOC. SCI. 69, 70 (1994).
117. For a detailed account of legal and unauthorized Haitian migration in the 1950s, 1960s, and 1970s, including analysis of its causes and characteristics and assessment of the legal asylum claims lodged by Haitian migrants, see Alex Stepick, Haitian Boat People: A Study in the Conflicting Forces Shaping U.S. Immigration Policy, 45 LAW & CONTEMP. PROBS. 163, 174 (1982). Between 1970 and 1980, 56,335 Haitians migrated to the United States legally, and between 1981 and 1991, 185,425 legal entrants from Haiti arrived. See Mitchell, supra note 104, at 70.
118. See Stepick, supra note 105, at 176 ("Haiti's prisons are still filled with people who have spent years in detention without ever being charged or brought to trial.... The variety of torture is incredible: clubbing to death, maiming the genitals, food deprivation to the point of starvation, and insertion of red-hot pokers into the back passage."). In addition to targeted political repression, "pervasive lawlessness" permeated the countryside under Baby Doc's reign, perpetrated by his notoriously brutal security forces, the Tonton Macoutes. Mitchell, supra note 104, at 74.
119. Mitchell, supra note 104, at 70.
120. Mitchell, supra note 104. at 74.
121. See RUTH ELLEN WASEM, CONG. RESEARCH SERV., U.S. IMMIGRATION POLICY ON HAITIAN MIGRANTS 2 (2005), available at https://www.policyarchive.org/handle/10207/3662.
122. In the late 1970s, for example, officials in South Florida feared that the increasing numbers of poor Haitians in urban areas would strain the economy and drain public resources. See Stepick, supra note 105, at 179.
123. In the late 1970s, for example, officials in South Florida feared that the increasing numbers of poor Haitians in urban areas would strain the economy and drain public resources. See Stepick, supra note 105. at 182.
124. Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 511 (S.D. Fla. 1980), modified sub nom. Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982).
125. As this shift in policy occurred, the INS also began rewriting asylum regulations that extended the same procedural protections given to aliens in deportation proceedings to Haitians in exclusion proceedings.
126. The court in Civiletti, 503 F. Supp. at 511, documented many of the steps taken by the INS, including scheduling a dozen or more interviews and hearings per hour, scheduling the hearings of multiple applicants who shared the same lawyer at the same time, id. at 523-34, and shortening ninety minute proceedings to less than thirty minutes, id. at 527. Before the Haitian program, the INS processed no more than half a dozen claims a day, whereas in 1978, the Agency processed between fifty-five and one hundred claims a day. Id. at 523. According to the United Nations High Commissioner of Refugees, which sent a representative to Miami during this period, many asylum applications were incomplete or contained no information that could be used to establish an asylum claim. Id. at 526.
127. See. at 451-52 (directing the INS to formulate a plan to adjudicate the cases consistent with due process and equal protection and observing that the INS policy was "designed to deport [Haitians] irrespective of the merits of their asylum claims" and suggesting that the INS might have been racially motivated in its treatment of the Haitians).
128. For a discussion of the Haitian-Cuban Entrant program, see infra notes 172-174 and accompanying text.
129. See Stepick, supra note 105, at 189-90.
130. See Louis v. Meissner, 532 F. Supp. 881 (S.D. Fla. 1982).
131. See Mitchell, supra note 104, at 73
132. WASEM, supra note 110, at 1-2 (noting that between fiscal year 1998 and fiscal year 2004, the Coast Guard interdicted over 1000 Haitians each year). In 2002, the INS published a notice to clarify that migrants arriving by sea who had not been admitted or paroled would be placed in expedited removal proceedings, concluding that "illegal mass migration by sea threatened national security because it diverts the Coast Guard and other resources from their homeland security duties." WASEM, supra note 110, at 4 (citing 67 Fed. Reg. 68,923-68,926 (Nov. 13, 2002)). In 2003, the Attorney General instructed immigration judges to consider the national security implications of creating incentives for further unlawful migration when making bond determinations, suggesting that granting bond in too many cases might fuel more unlawful migration. See In re D-J-, 23 I. & N. Dec. 572 (A.6. 2003).
133. See WASEM, supra note 110, at 2.
134. INS guidelines provided that: "If the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged." Stephen H. Legomsky, The USA and the Caribbean Interdiction Program, 18 INT'L J. REFUGEE L. 677, 679 (2006) (citing U.S. IMMIGR. AND NATURALIZATION SERV., INS ROLE IN AND GUIDELINES FOR INTERDICTION AT SEA, 1981, reprinted in LAWYERS COMM. FOR HUMAN RIGHTS, REFOULEMENT: THE FORCEDs RETURN OF HAITIANS UNDER THE U.S.-HAITIAN INTERDICTION AGREEMENT, exh. B, item H (1990)).
135. See Mitchell, supra note 104, at 73. In 1981, the Duvalier regime negotiated an agreement with the United States to permit these patrols and to prosecute smugglers. Id. According to the Congressional Research Service, between 1981 and 1990, 22,940 Haitians were interdicted at sea, and only 11 were determined by the INS to be entitled to asylum. See WASEM, supra note 110, at 3.
136. See Stepick, supra note 105, at 190.
137. Haitian migration had slowed substantially after Aristide's election, only to rise sharply after the coup. See Mitchell, supra note 104, at 74.
138. See WASEM, supra note 110, at 3.
139. See Mitchell, supra note 104, at 74. Apparently disagreement with the executive branch emerged over this policy shift. The Department of Defense was concerned about provoking the Cuban government; the State Department worried that too many Haitians were being permitted to claim asylum; and State and INS criticized the Coast Guard for encouraging Haitians to flee by patrolling too close to Haitian territory.
140. See WASEM, supra note 110, at 3. In 1998, Congress passed the Haitian Refugee Immigration Fairness Act, which allowed Haitians who had filed asylum claims or had been paroled into the United States before December 31, 1995, to adjust to legal permanent resident status.
141. See Mitchell, supra note 104, at 74.
142. Id. at 75. Stephen Legomsky describes the interdiction policy of the late Bush and early Clinton years as "the most extreme brand" of U.S. interdiction, largely because no procedure existed for screening the interdicted Haitians, and all passengers were returned to Haiti without status determinations. See Legomsky, supra note 122, at 686. In May of 1994, President Clinton entered into agreements with Jamaica and the Turks and Caicos whereby Haitian migrants would be given refugee status determinations on those countries' territories, supervised by the UNHCR. See id. at 681. When Aristide returned to power after the coup leaders stepped aside in response to military pressure from the United States, the U.S. repatriated Haitians then held at Guantánamo, despite safety concerns expressed by human rights groups. See id. at 681.
143. Legomsky, supra note 122, at 682 (emphasizing that this announcement represented the first time a U.S. President explicitly referred to Haitians as refugees but yet maintained that they could nonetheless be returned to their countries of origin, but also distinguishing the policy from the one in place in 1992 on the ground that the 2004 policy allowed the possibility of refugee status determinations in some cases). After this announcement, nearly 1000 Haitians fled by sea, only to be intercepted by the Coast Guard and returned to Port-au-Prince with minimal to no screening. See id. at 682 (citing Bill Frelick, "Abundantly Clear": Refoulement, 19 GEO. IMMIGR. L. J. 245, 245 (2004)).
144. High Seas Interdiction of Illegal Aliens, Proclamation No. 4865, 3 C.F.R. 50 (1982), reprinted in 8 U.S.C. § 1182 (2006).
145. See Proposed Interdiction of Haitian Flag Vessels, 5 Op. Off. Legal Counsel 242 (1981).
146. 8 U.S.C. § 1182(f).
147. Proposed Interdiction of Haitian Flag Vessels, supra note 134, at 244.
148. See Delegation of Responsibilities Concerning Undocumented Aliens Interdicted or Intercepted in the Caribbean Region, Exec. Order No. 13,276, 67 Fed. Reg. 69,985 (Nov. 15, 2002).
149. See Proposed Interdiction of Haitian Flag Vessels, supra note 134, at 242.
150. Id. at 245 (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)).
151. See id. at 245 (citing Haig v. Agee, 453 U.S. 281, 292-94 (1981) (holding that in the absence of legislation the President could control the issuance of passports to citizens, pursuant to the foreign relations power)).
152. 8 U.S.C. § 1253(h)(1) (1994).
153. Convention Relating to the Status of Refugees art. 33, July 28, 1951, 19 U.S.T. 6223, 189 U.N.T.S. 150. In an opinion concurring in part and dissenting in part from the D.C. Circuit's decision to dismiss one of these cases for lack of standing, Judge Harry T. Edwards concluded that Article 33 in and of itself provided no rights to aliens outside a host country's borders. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 839-41 (D.C. Cir. 1987) (Edwards, J., concurring in part and dissenting in part). OLC, in assessing the legality of interdiction in light of Article 33 challenges, emphasized that the United States ratified the Refugee Convention in 1968 on the ground that its obligations could be met through the already existing § 243(h) withholding provision, which applied only to the removal of refugees already in the United States, see INS v. Stevic, 467 U.S. 407, 415 (1984). The OLC memo also emphasized that the United States acceded to the convention through the 1967 Protocol, which is not self-executing and therefore does not create rights or duties that can be enforced by a court. See Legal Obligations of the United States Under Article 33 of the Refugee Convention, 15 Op. Off. Legal Counsel 86, 87 (1991). As Acting Assistant Attorney General, Walter Dellinger, in reviewing the interdiction policy, considered the question of whether aliens who were interdicted within U.S. territorial waters were entitled to a hearing. He concluded that undocumented aliens intercepted within U.S. territorial waters are "not entitled to an exclusion hearing under the INA," reaffirming that it is the alien's arrival at a port of the United States that triggers significant legal effects. Memorandum from Walter Dellinger, Acting Assistant Attorney Gen., to the Attorney Gen., Immigration Consequences of Undocumented Aliens' Arrival in the United States Territorial Waters, Oct. 13, 1993, http://www.usdodj.gov/olc/nautical.htm. Dellinger emphasized the broad authority given the Attorney General to promulgate regulations interpreting the INA to protect the nation's borders and the substantial deference accorded by the courts to the Attorney General in such matters. See id. (citing Jean v. Nelson, 727 F.2d 957, 966-67 (11th Cir. 1984), aff'd, 472 U.S. 846 (1984) (noting that the INA "permits wide flexibility in decision-making on the part of executive officials involved, and the courts are generally reluctant to interfere")). The Clinton OLC affirmed this conclusion after Congress reformed the immigration system in 1996, combining exclusion and deportation proceedings into a single removal procedure, concluding that because "unlanded" aliens interdicted on internal waters do not constitute applicants for admission, such aliens are not entitled to removal proceedings. See Procedural Rights of Undocumented Aliens Interdicted in U.S. Internal Waters, 20 Op. Off. Legal Counsel 381 (1996).
154. Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992). As Stephen Legomsky has observed, the effect of this order was to eliminate all screening of Haitian migrants and to ensure that no refugee status determinations were made before migrants were repatriated. See Legomsky, supra note 122, at 680.
155. 509 U.S. 155 (1993).
156. 509 U.S 187. The Court also concluded that the interdiction program created by the President had not usurped the power delegated to the Attorney General by Congress to adjudicate asylum claims, thus providing justification for a unitary conception of the Executive.
157. 509 U.S. at 188.
158. 509 U.S at 206 (Blackmun, J., dissenting).
159. 509 U.S. at 207.
160. 8 U.S.C. § 1182(d)(5) (2000). When the purposes of the parole have been served, the alien is required to return to custody.
161. In a message to the House of Representatives related to the Hungarian refugee crisis, President Eisenhower observed that "[t]heir admission to the United States as parolees... does not permit permanent residence or the acquisition of citizenship. I believe they should be given that opportunity...." Message from the President of the United States to the House of Representatives, 85th Cong., 103 CONG. REC. 1355 (1957). He thus recommended that Congress enact legislation giving the Attorney General the authority to permit paroled aliens to remain as permanent residents. Id.
162. See GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES AND AMERICA'S HALF-OPEN DOOR, 1945 TO THE PRESENT 55-56, 68-69, 85 (1986).
163. An important early example of this was the Hart-Celler Act, Pub. L. No. 89-236, 79 Stat. 911 (1965), which for the first time established a visa preference category for the admission of overseas refugees. Id. § 3. The committee reports accompanying the Act make clear that the new preference category was designed to curtail the President's use of parole power: Inasmuch as definite provision has now been made for refugees, it is the express intent of the committee that the parole provisions of the Immigration and Nationality Act, which remain unchanged by this bill, be administered in accordance with the original intention of the drafters of that legislation. The parole provisions were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside of the limit of the law. S. REP. NO. 89-748, at 17 (1965); accord H.R. REP. No. 89-745, at 15-16 (1965).
164. S. REP. NO. 89-748, at 17 (1965).
165. DAVID A. MARTIN ET AL., FORCED MIGRATION: LAW AND POLICY 75-78 (2007)
166. Arnold H. Leibowitz, The Refugee Act of 1980: Problems and Congressional Concerns, 1983 ANNALS AM. ACAD. POL. & SOC. SCI. 163, 164-65 (1983).
167. See H.R. REP. NO. 96-781 (1980) (Conf. Rep.), reprinted in 1980 U.S.C.C.A.N. 160, 161-62
168. S. REP. NO. 96-256 (1980), reprinted in 1980 U.S.C.C.A.N. 141, 141-42.
169. As Senator Edward Kennedy put it: Another concern in Congress was the use of the Attorney General's "parole authority". I felt that Congress had provided ample approval and constitutional justification for the authority. However, many disagreed, and the issue was of deep concern to many in Congress, especially in the House of Representatives. One of the principal arguments for the Act was that it would bring the admission of refugees under greater Congressional and statutory control and eliminate the need to use the parole authority. Edward M. Kennedy, Refugee Act of 1980, 15 INT'L MIGRATION REV. 141, 146 (1981). And yet, as Kennedy also pointed out, "the ink was hardly dry on this historic reform when the new law faced its first test: the massive influx of Cuban refugees to the United States, which began a few weeks after the Act became effective on April 1, 1980." Id. at 141. According to Kennedy, the Carter Administration resorted once again to ad hoc use of the parole power-a discouraging refusal of the Executive to use the new tools of the Refugee Act over which Congress had labored intensively. Id. at 141-42, 152-55. Among the reasons given by the Carter Administration was that it did not want to set a precedent for future admissions by labeling as refugees the many thousands of Cubans who were admitted during the Mariel event. Id.
170. In 2001, in another example of the Executive's use of the parole authority to set a quasiadmissions agenda, DOJ instructed its field offices "to adjust parole criteria with respect to all inadmissible Haitians arriving in South Florida after December 3, 2001, and that none of them should be paroled without the approval of INS headquarters." The apparent rationale for using parole authority more sparingly was to avoid triggering further mass migration from Haiti, which could result from migrants' expectations that they would be paroled. WASEM, supra note 110, at 5 (quoting Letter from Daniel J. Bryant, Assistant Att'y Gen., to Senators Edward Kennedy and Sam Brownback (Sept. 25, 2002)).
171. In 1981, the Reagan Administration proposed a series of reforms that would have widened its latitude to deal with crises similar to the Haitian experience, contending that the courts, if not Congress, were constricting the Administration's ability to operate. The proposed legislation included bars on asylum applications by persons who arrived in the United States without visas, limitations on the participation of counsel, and the preclusion of judicial review of anything other than a final order of exclusion. See Ira J. Kurzban, Restructuring the Asylum Process, 19 SAN DIEGO L. REV. 91, 94-98 (1981)
172. Stepick, supra note 105, at 192-93.
173. The Refugee Act delegates power to the President to set the maximum number of refugees who may be admitted in the upcoming fiscal year and allows the President to decide how that total will be allocated among the countries of the world-numbers that are set in family and labor immigration systems by Congress in statute. See INA §§ 207(a)(2)-(3), 8 U.S.C. §§ 1157(a)(2)-(3) (2000). The Act sets no limits on how many (or how few) refugees the President may admit; the statute requires that he engage in "appropriate consultation" with Cabinet members and members of congressional committees. Id. §§ 207(a)(3)-(e), 8 U.S.C. §§ 1157(a)(3)-(e). For a fuller account of this system, see Legomsky, supra note 2, at 696-706.
174. The Reagan-era shift to interdiction could have been partially responsive to this limitation imposed on the Executive by Congress in 1980, though political pressure from southern Florida to prevent refugees from entering, as well as the Reagan Administration's more muscular approach to foreign policy, probably provide better explanations for the shift in policy.
175. See INA § 212(d)(5)(B), 8 U.S.C. § 1182(d)(5)(B) (2006) (prohibiting the Attorney General from paroling refugees without "compelling reasons in the public interest with respect to that particular alien")
176. supra notes 156-160 and accompanying text.
177. INA § 207(e), 8 U.S.C. § 1157(e) (2006)
178. Legomsky, supra note 2, at 681, 696-97 (noting that consultation is "defined to include personal discussion between Cabinet-level representatives of the President and members of the pertinent congressional committees").
179. See Kennedy, supra note 158, at 143 (noting that the Act ensured that "refugee" applied not only to refugees from communism or certain areas of the Middle East, but also to all who met the standard for refugee under the Refugee Convention and Protocol).
180. At least until the mid-1990s, however, the President continued to use the authority delegated to him by the Act to select overseas refugees to give preferences to refugees from communist and formerly communist countries. See Legomsky, supra note 2, at 698-99.
181. See supra note 158 and accompanying text.
182. See WASEM, supra note 110, at 1.
183. See Stepick, supra note 105, at 187-88. Whether Haitian migration was motivated by economic or political factors also has been a source of debate. During the Aristide years, the fact that the election of Aristide coincided with a major decline in out-migration, and that the subsequent coup overthrowing him produced a dramatic spike in refugee flows, underscores that at crucial moments, Haitian migration has been motivated substantially by political violence. See Legomsky, supra note 122, at 680.
184. Since 1966 and the passage of the Cuban Adjustment Act, Cubans present in the United States for at least two years have been permitted to adjust their status to permanent resident-an option given to no other nationality. Act of Nov. 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161 (codified as amended in scattered sections of 8 U.S.C.).
185. See Stepick, supra note 105, at 187-88 (noting that "Haitian advocates were quick to advance charges of discriminatory treatment," staging hunger strikes and marches in Miami, New York, Washington, and elsewhere, and that the Congressional Black Caucus put pressure on the Administration to change its policies).
186. See Stepick, supra note 105, at 188.
187. See WASEM, supra note 110, at 2.
188. See Stepick, supra note 105, at 188-89.
189. See Maria E. Sartori, The Cuban Migration Dilemma: An Examination of the United States' Policy of Temporary Protection in Offshore Safe Havens, 15 GEO. IMMIGR. L.J. 319, 333 (2001).
190. Under this policy, Cubans interdicted at sea are returned to Cuba, but Cubans who step foot on U.S. soil are paroled into the United States, after which they usually can adjust status under the Cuban Adjustment Act within a year, at the discretion of the Attorney General.
191. See Stepick, supra note 105, at 187-88. Among the effects of this policy shift, along with the maintenance of the "wet foot-dry foot" policy, has been the rise of Cubans traveling to Honduras (the only country in the Americas that does not repatriate interdicted Cubans) and crossing the United States's border with Mexico. See Legomsky, supra note 122, at 683.
192. See RUTH ELLEN WASEM, CONG. RESEARCH SERV., CUBAN MIGRATION POLICY AND ISSUES 2-3 (2006), http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-9147:1.
193. See id. at 3. As part of this arrangement, Cuba agreed to count the migrants admitted under the 1995 parole agreement toward the 20,000 annual minimum of the 1994 agreement. In addition, the United States agreed to provide those interdicted at sea with the opportunity to express fear of persecution-an opportunity not given to Haitian migrants. Those who met the definition of refugee would be resettled in third countries. Approximately 170 Cubans were resettled between 1995 and 2003. See id. In fiscal year 2005 alone, the Coast Guard interdicted 2712 Cubans-the highest level of interdiction since the 1994 balsero crisis. See U.S. Coast Guard, Alien Migrant Interdiction, http://www.uscg.mil/hq/cg5/cg531/AMIO/FlowStats/FY.asp (last visited Sept. 6, 2009).
194. In another policy shift that reflects the mutual influence of the two branches on one another, in 1998, President Clinton directed that a form of temporary relief known as "deferred enforced departure" be given to Haitians who had been paroled into the United States or had applied for asylum before December 1, 1995. This order came on the heels of Congress's decision to extend special relief to persons from Guatemala, Nicaragua, Cuba, the Soviet Union, and Eastern Europe in the Nicaraguan Adjustment and Central American Relief Act of 1997. Congress subsequently codified the President's order in the Haitian Refugee Immigration Fairness Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681. See Legomsky, supra note 122, at 681.
195. This development does not mean, of course, that such conflicts cannot occur today. In fact, the executive branch does sometimes act today in ways that appear to disregard its own understanding of existing statutory requirements. Immigration detention provides but one example. Section 236(c) of the INA provides that "[t]he Attorney General shall take into custody" certain classes of inadmissible and deportable noncitizens. 8 U.S.C. § 1226(c) (2006) (emphasis added). The immigration agencies have interpreted this provision to deny them the authority to release noncitizens covered by the provision. Nonetheless, in several instances, the government has chosen to release noncitizens who have been detained for prolonged periods of time pursuant to § 236(c)-often in order to moot lawsuits challenging the Attorney General's interpretation of the statute (and the constitutionality of prolonged detention). In these situations, therefore, the government appears to be releasing noncitizens while simultaneously contending that Congress prohibits their release under § 236(c).
196. See Legomsky, supra note 2, at 680-86 (describing a history of transfer of policymaking authority from the Executive to Congress as embodied in the detail with which the INA lays out grounds of admission and removal, as well as elements of the Refugee Act of 1980, IRCA, and the Immigration Act of 1990).
197. To be sure, there are some exceptions to this trend. As our discussion above demonstrates, the parole power prior to the passage of the 1980 Refugee Act, and the power conferred by § 212(f), do not fit as cleanly into this model of intricately identified formal screening criteria. But this mismatch is part of what makes the Haitian/Cuban crisis so unique
198. These first controls were contained in the Page Act, which was enacted in 1875. Act of Mar. 3, 1875, ch. 141, § 1, 18 Stat. 477, 477. The only minor exception was the anomalous, controversial, and short-lived Alien Enemies Act of 1798, which authorized the President to deport noncitizens he deemed dangerous to the United States. See Act of June 25, 1798, ch. 58, 1 Stat. 570, 570-71 ("[I]t shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States...."). By its terms, the Act expired two years after its passage. See id. § 6.
199. In 1891, for example, Congress made noncitizens deportable for one year following entry if they were found to have entered in violation of law. See Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat. 1084, 1086.
200. See SALYER, supra note 29, at 43-68 (discussing the development of documentation requirements).
201. When the government attempted to implement more stringent documentation requirements, the Chinese immigrant community (which was the principal target of the legislation) engaged in coordinated civil disobedience that successfully prevented the government from enforcing its new documentation requirements. See Act of May 5, 1892 (Geary Act), ch. 60, § 3, 27 Stat. 25, 25 (creating a presumption that any Chinese resident was deportable "unless such person shall establish, by affirmative proof,... his lawful right to remain in the United States," a statutory requirement backed by regulations requiring all Chinese immigrants to obtain a certificate of residence as proof of their lawful right to remain)
202. SALYER, supra note 29, at 46-58 (describing mass refusal to apply for certificates of residence and the government's eventual capitulation, which meant that the documentation requirement was never enforced).
203. See NGAI, supra note 86, at 55-56, 64-68.
204. See INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (2006) ("An alien present in the United States without being admitted or paroled... is inadmissible.")
205. INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A) (2006) ("Any alien who at the time of entry [was]... inadmissible by the law existing at such time is deportable.")
206. INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) (2006) ("Any alien who is present in the United States in violation of this Act [which includes those who have overstayed their visas]... is deportable.").
207. See, e.g., JEFFREY S. PASSEL, PEW HISPANIC CTR., THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. (2006), http://pewhispanic.org/ files/reports/61.pdf
208. DAVID A. MARTIN, MIGRATION POLICY INST., TWILIGHT STATUSES: A CLOSER EXAMINATION OF THE UNAUTHORIZED POPULATION (2005), http://www.migrationpolicy.org/pubs/MPI_PB_6.05.pdf (categorizing the varied statusesof the undocumented population).
209. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505 (2001).
210. In fact, immigration law may comport even more closely with Stuntz's claims than does criminal law. Stuntz's theory about criminal law turns centrally on his claim that modern criminal law renders wide swaths of the American public subject to criminal prosecution. Richard McAdams has recently questioned the accuracy of this account and wondered whether Stuntz is "exaggerating when he says that the current [criminal justice] system is 'lawless,' that criminal statutes are a 'side-show,' that we are coming 'ever closer to a world in which the law on the books makes everyone a felon.'" Richard H. McAdams, The Political Economy of Criminal Law and Procedure: The Pessimists' View, in CRIMINAL LAW CONVERSATIONS 517, 523 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., 2009). But while it seems somewhat implausible that thirty percent of Americans are formally "felons," more than this fraction of noncitizens are formally deportable.
211. See Exercising Prosecutorial Discretion, Memorandum from Doris Meissner, INS Comm'r, to Reg'l Dirs., Dist. Dirs., Chief Patrol Agents, and Reg'l & Dist. Counsel of INS (Nov. 17, 2000) (on file with authors) (outlining factors to be considered when deciding whether to exercise discretion to pursue removal). Though this memo documents the immigration agency's authority to decline to prosecute, it is important to note that the memo reveals only a small aspect of the agency's exercise of prosecutorial discretion. It focuses very much on individual case equities-on the question of whether a deportable noncitizen who is apprehended or otherwise comes to the attention of the agency should be placed in proceedings. Unsurprisingly, it does not discuss or document the larger system-wide decisions about enforcement priorities that dramatically affect the types of noncitizens who are likely to be placed in removal proceedings. (In this way, this memo is more closely related to Gerry Neuman's project, see infra note 209, than it is to ours.)
212. The following discussion draws on Cox & Posner, supra note 13.
213. Act of May 6, 1882 (The Chinese Exclusion Act), ch. 126, § 12, 22 Stat. 58, 61, repealed by Act of Dec. 17, 1943, ch. 344, 57 Stat. 600.
214. See Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat. 1084, 1086.
215. See Immigration Act of Feb. 20, 1907, ch. 1134, § 3, 34 Stat. 898, 899-900.
216. See Immigration Act of 1917, ch. 29, § 19, 39 Stat. 874, 889 (making deportable "at any time within five years after entry... any alien who at any time after entry shall be found advocating or teaching the unlawful destruction of property, or advocating or teaching anarchy, or the overthrow by force or violence of the Government of the United States"); id. (making deportable "any alien who is hereafter sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry").
217. See Act of May 26, 1922, ch. 202, § 2(e), 42 Stat. 596, 597 (making deportable any noncitizen convicted of violating the statute's prohibition on the importation of or dealing in opium).
218. See Immigration and Nationality Act, ch. 477, 66 Stat. 163 (1952).
219. See, e.g., Act of Oct. 16, 1918, ch. 186, § 2, 40 Stat. 1012, 1012 (eliminating the 1917 Immigration Act's statute of limitations on the deportability of anarchists)
220. Act of Mar. 26, 1910, ch. 128, § 3, 36 Stat. 263, 264-65 (eliminating the statute of limitations from the 1907 Act's ground of deportability for noncitizens who, after entry, practiced prostitution or were associated with a house of prostitution)
221. cf. Immigration Act of 1917, § 19 (extending to five years the statute of limitations for deporting public charges).
222. See, e.g., INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i)(I) (2006) (making deportable noncitizens convicted of a single "crime involving moral turpitude committed within five years... after the date of admission").
223. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
224. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546
225. Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, 108 Stat. 4305
226. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978
227. National Narcotics Leadership Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181.
228. See National Narcotics Leadership Act of 1988, Pub. L. No. 100-690, § 7344(a), 102 Stat. 4181, 4470-71.
229. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440, 110 Stat. 1214, 1276-79
230. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 321, 110 Stat. 3009-546, 3009-627 to 3009-628
231. Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, § 222, 108 Stat. 4305, 4320-22
232. Immigration Act of 1990, Pub. L. No. 101-649, § 501, 104 Stat. 4978, 5048.
233. See INA § 101(a)(43), 8 U.S.C. § 1101(a)(43)
234. Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) (holding that the Illinois Class A misdemeanor of criminal sexual abuse constitutes an aggravated felony)
235. IMMIGRATION LAW AND PROCEDURE, § 71.05(2)(d) (examining case law interpreting the breadth of "aggravated felony")
236. Dawn Marie Johnson, Note, The AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes, 27 J. LEGIS. 477 (2001).
237. Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611, 614(2006) (noting that deportation rules can set a "very high standard of conduct that does not express the country's deportation policy, but rather creates a large pool of legally deportable aliens among whom the minister selects on some other basis... as a matter of enforcement discretion").
238. Prior to 1996, statutory relief from deportation was available under a variety of circumstances. All deportable noncitizens who could otherwise qualify for an immigrant visa-even those without lawful status-were eligible for suspension of deportation if they had lived for a sufficient period in the United States, were of good moral character, and could make a showing of extreme hardship. See INA § 242, 8 U.S.C. § 1254 (1994), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, div. C, § 308(b)(7), 110 Stat. 3009-546, 3009-615. For lawful permanent residents, somewhat more generous relief was also available under INA § 212(c). Congress significantly restricted the availability of relief from removal in 1996 when it consolidated the various relief provisions. See INA § 240A, 8 U.S.C. § 1229b (2006). After 1996, for example, noncitizens convicted of "aggravated felonies" are categorically ineligible for relief from removal. See INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3).
239. Stephen H. Legomsky, Fear and Loathing in Congress and the Courts: Immigration and Judicial Review, 78 TEX. L. REV. 1615 (2000).
240. See INA §§ 240A, 240B, 8 U.S.C. §§ 1229(b), 1229(c) (2006).
241. See, e.g., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 280-81 (Thomas Alexander Aleinikoff, et al., eds., 6th ed. 2008) (describing the creation of EOIR in 1983 as well as Congress's decision to keep EOIR in DOJ rather than to transfer it to DHS)
242. Stephen H. Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369 (2006) (discussing the erosion of independence in the context of immigration adjudication).
243. Note the way in which other summary removal mechanisms accomplish this consolidation, as well. Existing literature focuses principally on the way in which the summary mechanisms alter the amount of process that an immigrant receives; but it is also important to be attentive to the way in which these provisions change the distribution of decisionmaking authority within the executive branch by giving the Executive broader authority to determine how to utilize enforcement resources, and how quickly to remove certain types of noncitizens. Until recently, the Executive used expedited removal only at ports of entry to screen for arriving immigrants with fraudulent documents, permitting those who could demonstrate credible fear of persecution to go through the asylum process. But in 2005, Secretary Chertoff announced that expedited removal would be used for non-Mexicans apprehended within 100 miles of the border who could not demonstrate lawful entry or presence inside the country for more than fourteen days. This expansion of the policy clearly reflected the Executive's decision to place greater emphasis on removing immigrants who crossed the U.S.-Mexico border without inspection.
244. See Cox & Posner, supra note 13.
245. Our reliance on ex post screening is also reflected in the increasingly common process that permits growing numbers of immigrants initially admitted on a temporary basis to adjust their status to permanent resident.
246. See, e.g., 8 U.S.C. § 1153(a) (allocating family visas); id. § 1153(b) (allocating visas on employment grounds).
247. See Memorandum from Bo Cooper to Gen. Counsel, INS, and Deputy Comm'r, INS, 1 INS and DOJ Legal Opinions § 99-5, at 3 (2006) ("The doctrine of prosecutorial discretion applies to enforcement decisions, not benefit decisions. For example, a decision to charge, or not to charge, an alien with a ground of deportability is clearly a prosecutorial enforcement decision. By contrast, a grant of an immigration benefit, such as naturalization or adjustment of status, is a benefit decision that is not a subject for prosecutorial discretion."). It is also important to note that, though ICE has the authority not to commence a removal proceeding against an alien, it does not have the authority to "grant a status for which an alien is not eligible, so the alien remains in a continuing, difficult state of limbo and illegality." Id. at 7.
248. 8 U.S.C. § 1157(a). Congress also gave the President the power to add refugee slots in the event of emergency-a power President Clinton exercised after events in Kosovo in 1999. See id. § 1157(b).
249. 8 U.S.C. §§ 1157(a)(1)-(a)(3), 1157(b). Through this process, the President can express normative views and advance his foreign policy agenda by determining from what part of the world to accept refugees. Since 1990, pursuant to § 244 of the INA, the President also has possessed the power to grant Temporary Protected Status (TPS) to aliens who are fleeing violent situations, natural disasters, or other calamities but do not necessarily qualify under the legal definition of refugee. See 8 U.S.C. § 1254a. TPS may be granted for six to eighteen months and may be extended if the conditions that precipitated it have not improved. Aliens with TPS status are not on the path to lawful permanent resident status. The numbers of aliens with TPS status are significant, to be sure. In 2008, for example, aliens of seven nationalities residing in the United States had TPS status, including 229,000 individuals from El Salvador and 70,000 from Honduras. See RUTH ELLEN WASEM & KARMA ESTER, CONG. RESEARCH SERV., TEMPORARY PROTECTED STATUS: CURRENT IMMIGRATION POLICY AND ISSUES 5 (2008), http://pards.org/crs/CRS_Report_Temporary_Protected_Status_Current_Immigration_Policy_and_Issues_ (September_30,_2008)_Updated.pdf. It is important to note, however, that these numbers do not reflect annual grants of TPS, but rather the number of persons who have TPS in 2008, many of whom were granted the status years ago. See id. at 5, tbl.1 (demonstrating that the Salvadorans with TPS in 2008 have had that status since 2001, and that the Somalis with TPS in 2008 were granted that status as early as 1991). In addition, these numbers of admissions are far less substantial than those in the pool of aliens over which the President exercises ex post screening authority, or the number of immigrants admitted on an annual basis through the labor and family channels established by Congress.
250. From 1980 until the end of the Cold War, for example, the Executive allocated almost all of the refugee quotas to persons fleeing communist countries or other adversaries of the United States. See STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 932 (4th ed. 2005) (citing statistics from 55 Fed. Reg. 41,979-80 (Oct. 17, 1991)).
251. 8 U.S.C. § 1182(f). See supra Subsection II.B.2.a. for a detailed discussion of these developments.
252. We should note one other source of delegated authority: legal uncertainty. The INA's admission and exclusion criteria are for the most part relatively rule-like, but all legal criteria leave some interpretive uncertainty. This uncertainty often has the effect of delegating to the executive branch the authority to give content to substantive standards set by Congress. Asylum and withholding law illustrate this point. See Internal Security Act of 1950, ch. 1024, § 23, 64 Stat. 987, 1010 (codified as amended in scattered sections of 50 U.S.C.) (setting out the first withholding provision: withholding does not entitle an alien to permanent resettlement, and the standards for establishing eligibility for withholding are distinct from the standards required for establishing persecution). Though Congress has set the broad parameters for who qualifies for withholding or asylum, the Board of Immigration Appeals and the Courts of Appeals, through the adjudication of asylum claims, have given the standards their actual content. In this sense, through case-by-case adjudication, the executive branch has essentially set ex ante standards by determining which sorts of claims fall within the definition of refugee adopted by Congress, determining what it means to have a "well founded fear" or to be a member of a "particular social group." A similar example comes from the exclusion provisions, which make inadmissible a noncitizen who has committed a "crime involving moral turpitude"-a vague phrase undefined in the INA. See 8 U.S.C. § 1182(a)(2). While the discretion conferred by these provisions is important, the accumulation of agency and judicial interpretation has significantly reduced the interpretive uncertainty surrounding these provisions and prevented them from amounting to large-scale delegations of authority akin to the ones we describe in the main text.
253. MICHAEL JOHN GARCIA, MARGARET MIKYUNG LEE & TODD TATELMAN, CONG. RESEARCH SERV., IMMIGRATION: ANALYSIS OF THE MAJOR PROVISIONS OF H.R. 418, THE REAL ID ACT OF 2005 (2005), https://w2.eff.org/Activism/realid/analysis.pdf.
254. Illegal Immigration Reform and Immigration Responsibility Act of 1996, § 103, 8 U.S.C. § 1103 add. (2006).
255. The central purpose of the REAL ID Act was to set out a new set of security-conscious criteria to which government-issued identification, including state identification, had to adhere.
256. H.R. REP. NO. 109-72, at 171 (2005).
257. For procedural reasons, this debate was largely incidental to the Act's passage. As a standalone measure, the REAL ID Act passed the House but did not make it through the Senate. In March of 2005, however, it was appended to an emergency appropriations bill that included funds for U.S. troops and victims of the tsunami in Southeast Asia, ultimately making opposition to the Act politically unpalatable. Because the Act had been attached in committee, no debate or amendment process was possible in the Senate, and the REAL ID Act thus made its way through the chamber, despite opposition. Members of the Senate lamented the way in which the Act was passed. Senator Russell Feingold (D-WI) asked: "What happened to the legislative process? I know that some in the other body, and some in the Senate as well, have very strong feelings about these immigration provisions. But strong feelings do not justify abusing the power of the majority and the legislative process in this way." 151 CONG. REC. S4816, 4823-24 (daily ed. May 10, 2005); see also 151 CONG. REC. S4816, 4831 (daily ed. May 10, 2005) (statement of Sen. Obama) ("Despite the fact that almost all of these immigration provisions are controversial, the Senate did not conduct a full hearing or debate on any one of them. While they may do very little to increase homeland security, they come at a heavy price for struggling State budgets and our values as a compassionate country.").
258. 151 CONG. REC. S4814, 4815 (daily ed. May 10, 2005). The Supreme Court denied certiorari in June 2008 on a case challenging the waiver provision of the REAL ID Act as a violation of the nondelegation doctrine. See Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007), cert. denied, 128 S. Ct. 2962 (2008).
259. 151 CONG. REC. S4816, 4841 (daily ed. May 10, 2005). Similar concerns were expressed during the debates over the McCarran-Walter Act in 1952 and the inclusion of what is now Section 212(f). Several witnesses before the House Judiciary Committee emphasized that the power was not necessary outside of emergencies because "Congress was certainly available," Joint Hearings on S. 716, H.R. 2379, and H.R. 2816 Before the Subcomms. of the Comms. on the Judiciary, 82d Cong. 448 (1951) (statement of Stanley H. Lowell, Americans for Democratic Action, D.C.); that the "lawmaking power is entrusted to Congress," making the provision an improper delegation of power, Hearings Before the President's Commission on Immigration & Naturalization, 83d Cong. 1787 (1952) (statement of Ben Touster, President, Hebrew Sheltering and Immigrant Aid Society); and that the "blanket authority" the provision delegated gave the President power to "wipe out immigration altogether," a "tremendous and wide power in the hands of any one individual" that could lead to events such as the Palmer Raids, Hearings Before the President's Commission on Immigration and Naturalization, 83d Cong. 375 (1952) (statement of Samuel Abrams, Attorney & President, Hebrew Sheltering and Immigrant Aid Society).
260. In 2005, Secretary of DHS Michael Chertoff waived "in their entirety, with respect to the construction of the barriers and roads" prescribed in Congress's 1996 legislation, "all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to" the National Environmental Policy Act, the Endangered Species Act, the Coastal Zone Management Act, the Clean Water Act, the National Historic Preservation Act, the Migratory Bird Treaty, the Clean Air Act, the Administrative Procedure Act, and the Religious Freedom Restoration Act, among other statutes, and reserved the authority to make additional waivers. See 70 Fed. Reg. 55,623 (Sept. 22, 2005). For an argument that this delegation of authority violates the nondelegation doctrine because it affects private rights but does not provide for the crucial safeguard of judicial review, see Petition for Writ of Certiorari, El Paso v. Chertoff, 129 S. Ct. 2789 (No. 08-751).
261. For example, the Executive might be able to screen at the border for particular types of migrants by using its expedited removal authority to return unlawful border crossers, rather than seek out unauthorized aliens who have overstayed their visas and who may represent a different type or class of person.
262. In particular, we might expect underenforcement to prefer those immigrants who have the most to gain from migrating, those who have the fewest other migration options, and those who are more risk-seeking.
263. Recently, Gerry Neuman has made a somewhat different argument about the location of discretion in the immigration system. In Discretionary Deportation, supra note 209, he argues that U.S. deportation policy is primarily rule-governed, with enforcement discretion. U.S. admission policies differ, and even those that are rule-governed in theory may become discretionary in practice. In rough terms, this contrast reflects a greater emphasis on the rule of law in dealing with foreign nationals who have already developed connections with the United States.... Id. at 618. Neuman's conclusion initially appears to be the opposite of ours: he seems to be saying that there is more executive discretion at the ex ante stage than the ex post screening stage. But this tension dissolves when one realizes that Neuman's research interest and methodological focus is quite different from ours. He focuses principally on the extent to which formal legal rules confer de jure discretion on the Executive-as when the INA formally grants immigration judges discretion to decide whether some noncitizens should be granted relief from deportation. In contrast, we focus centrally on the way the INA confers de facto discretion by expanding the grounds of categorical deportability. Relatedly, Neuman focuses somewhat more on individual determinations rather than the way that the formal rules interact with the overall structure of the immigration laws. This makes much less important for him something that is perhaps the central feature of our account-the fact that the huge undocumented population sits alongside the deportation rules in a way that gives the Executive considerably more discretion than the de jure discretion rules in the code.
264. See supra notes 132-140 and accompanying text.
265. See supra Sections II.A.-B.
266. Although it is not our central focus here, our descriptive project also is important for ongoing debates about the connections between immigration law and modern administrative law doctrines. Federal courts have been confused for years about the extent to which their review of immigration courts should be governed by Chevron and a variety of other rules related to judicial deference, res judicata, and so on. Some courts have interpreted the history of plenary power jurisprudence to require exceptional deference to the immigration agencies; others have treated those agencies as subject to conventional doctrines of administrative law; and still others have treated those agencies with considerably more skepticism than modern administrative law would allow. See, e.g., Adam B. Cox, Deference, Delegation, and Immigration Law, 74 U. CHI. L. REV. 1671 (2007) (discussing this confusion). At a very basic level, these questions cannot be resolved without a theory of the immigration separation of powers. See supra note 49 and accompanying text.
267. One could also describe the path of delegation in a different way: it might have been influenced by the extent to which Congress has been able to anticipate that the Executive shares its political goals. (The presence or absence of aggressive assertions of executive authority might be similarly driven by partisan dynamics.) In this story, important variables would include the existence of divided government, or of the rise of an Executive with clearly different policy priorities, if not from a different party, than from the Congress that enacted the legislation being enforced. Cf. DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS (1999) (analyzing conditions under which Congress does or does not delegate and observing, among other things, that Congress is more likely to delegate in the face of unified as opposed to divided government or with respect to technically complex issues)
268. Levinson & Pildes, supra note 20, at 2361 ("[B]ranch interests are not intrinsic and stable but rather contingent upon shifting patterns of party control.... Commentators have suggested, for example, that future Congresses will now think twice before delegating regulatory authority to an executive branch that could change partisan hands-and policy outlook-and legally be able to implement its new policies through agency reinterpretations of statutes.").
269. In 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act (NACARA), which provided amnesty to nationals of Nicaragua and Cuba. Nationals of Guatemala, El Salvador, the former Soviet Union and its successor republics, and most Eastern European nations were given the right to apply for cancellation of removal under pre-1996 standards, which were less onerous than the then-applicable provisions. See Pub. L. No. 105-100, 111 Stat. 2160, 2193 (1997) (codified as amended in scattered sections of 8 U.S.C.).
270. In this way, immigration law operates much like criminal law, where the use of proxies is widespread. The classic example is the crime of possessing burglar's tools, which clearly serves as a proxy for the crime of burglary itself.
271. See, e.g., Jennifer M. Chacón, Unsecured Borders: Immigration Restrictions, Crime Control and National Security, 39 CONN. L. REV. 1827 (2007) (discussing the use of immigration law as a criminal enforcement strategy).
272. See 8 U.S.C. § 1227(a)(2) (2000).
273. A closely related point can be made about the process due to immigrants in deportation proceedings. One of the consequences of the changes in the structure of immigration law has been to deflate the importance of the procedural protections that have developed over the last century. Some of the reductions have been driven by Congress: the immigration code today often accords less process to those being removed on the ground that they entered without authorization than to those being removed on other grounds. Compare 8 U.S.C. § 1229(a) (2000) (describing the ordinary removal process) with 8 U.S.C. § 1225(b) (2000) (describing the expedited removal process for illegal entrants) and 8 U.S.C. § 1231(a)(5) (2000) (describing the process for reinstating removal orders for those who reenter unlawfully after being deported). More important for present purposes, however, is that even when the code does not formally strip process protections, those protections become much less relevant when the only question before the adjudicator is the oftenconceded question of whether the noncitizen entered the country without authorization. In fact, recent events have highlighted the fact that the modern system's deflation of due process extends even to instances where immigrants are accorded full criminal procedural protections because they have been charged with criminal immigration violations. Along the Texas border, enforcement policy has shifted and mass plea agreements with no meaningful process are becoming the norm despite the attachment of Fifth and Sixth Amendment guarantees. Similar mass plea arrangements have become a central aspect of the recent worksite raids in Iowa and elsewhere. See Erik Camayd-Freixas, Interpreting After the Largest ICE Raid in U.S. History: A Personal Account, MONTHLY REV., Dec. 7, 2008, http://www.monthlyreview.org/mrzine/camayd-freixas120708.html.
274. See, e.g., Rubén G. Rumbaut et al., Debunking the Myth of Immigrant Criminality: Imprisonment Among Firstand Second-Generation Young Men, http://www.migrationinformation.org/Feature/display.cfm?ID=403 (last visited Oct. 31, 2009) (documenting that the incarceration rate for the native born is substantially higher than for the foreign born).
275. See DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM 22-35 (2003)
276. Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 CAL. L. REV. 373 (2004) (discussing other post-9/11 policies that used immigration status proxies to pursue national security concerns).
277. Here, the Base Closure and Realignment Commission presents the classic example; Congress created the Commission in 1988 after it became clear that the politics of base closure made it nearly impossible for Congress itself to select the bases to be closed. See COLTON C. CAMPBELL, DISCHARGING CONGRESS: GOVERNMENT BY COMMISSION 113-28 (2002).
278. Of course, the opposite might also be true. The large-scale delegation of immigration authority may make it easier for Congress to avoid tackling big immigration reform questions. If we wanted Congress to act more often, we would look at separation-of-powers questions with a view to establishing norms that would force Congress to act, instead of regarding executive decisionmaking as a form of democracy accommodation. See, e.g., DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).
279. To be sure, defending the asymmetry is not impossible. There might be reasons why such asymmetry is desirable from the perspective of optimal institutional design. Asymmetric delegation arguably tells us something important about rules, standards, and the relationship between ex ante and ex post screening. Imagine that it is relatively easy to specify clear rules for screening immigrants on the basis of pre-entry information, but comparatively more difficult to specify clear rules for screening immigrants on the basis of post-entry information. Were this the case, it might make sense for Congress to specify the ex ante screening rules (because doing so would not be particularly costly) while delegating to the immigration agencies the power to make ex post screening decisions on the basis of looser standards. This structure would allow Congress to avoid the costlier project of developing clear ex post screening rules and allow administrative agencies to act when they are institutionally better positioned to respond flexibly on a case-by-case basis in the ex post context, where more contextual information gathering will be necessary. In reality, this since 1996, Congress has adopted a long list of ex post screening rules in the form of grounds for removal. This evidence is in tension with the claim that Congress finds legal rules easier to generate for ex ante than ex post screening. More generally, nothing in our descriptive account in Parts I and II would suggest that the asymmetry that has arisen has much to do with optimal precision of legal rules.
280. We note that we are less certain that the asymmetry stemming from Congress's expansion of the post-entry grounds for removal is "pathological" or undermines the rule-of-law values that the separation of powers ought to advance. It is arguably preferable, both from an information gathering perspective and a normative fairness perspective, for the government to admit immigrants without attempting to predict the likelihood that they will commit certain crimes, leaving the sorting of "desirable" from "undesirable" immigrants to be done based on immigrants' behavior once they have arrived. Independent arguments could be made, however, against the normative desirability of the profusion of grounds of removability since 1996.
281. See Cox & Posner, supra note 13 (discussing the possibility that a purely self-interested state might prefer the illegal system).
282. See JORGE G. CASTAÑEDA, EX MEX: FROM MIGRANTS TO IMMIGRANTS 174-75 (2007) (observing that the status quo allows the United States to avoid difficult choices, placates the left and the right by pretending to go after unscrupulous employers and building a "make-believe" fence, keeps labor cheap with minimal risk to security, and keeps remittances and safety valves open for developing countries such as Mexico)
283. GORDON H. HANSON, THE ECONOMIC LOGIC OF ILLEGAL IMMIGRATION 28-29 (2007), available at https://www.cfr.org/content/publications/attachments/ImmigrationCSR26.pdf (noting that illegal immigrants, because of their relative absence of ties, respond most quickly to changes in the labor market)
284. Cristina M. Rodríguez, The Citizenship Paradox in a Transnational Age, 106 MICH. L. REV. 1111 (2008) (book review).
285. The formally illegal status of these migrants can also distort the policymaking process. The rise of an unauthorized population shifts the focus away from other immigration policy matters that may be just as pressing, such as high-skilled immigration or reforming the system of immigration adjudication, but that cannot be broached as long as the unauthorized problem remains.
286. Katherine Evans, The ICE Storm in U.S. Homes: An Urgent Call for Policy Change, 33 N.Y.U. REV. L. & SOC. CHANGE (forthcoming 2009) (chronicling alleged abuses committed by ICE agents during home raids, including entering homes without true consent, mistaking citizens for deportable immigrants, and humiliating arrestees, such as taking them into custody in night clothes and releasing them after processing far from home and without means of return)
287. Stella Burch Elias, "Good Reason to Believe": Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 WIS. L. REV. 1109 (noting increased Fourth Amendment violations in immigration raids, including during recent home raids).
288. Among the most significant risks that can accompany the asymmetry we describe is the risk of racial profiling by police. Particularly in an era when state and local governments are responding to the high levels of unauthorized immigration by calling for more of their own participation in the enforcement of federal immigration law, the likelihood of profiling would seem to rise. For a discussion of this phenomenon, see Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 635 (2008).
289. Cristina M. Rodríguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219
290. Cristina M. Rodríguez, Reciprocity in an Age of Migration (2009) (manuscript on file with author).
291. See Stuntz, supra note 191, at 579-82 (discussing a similar mechanism for reducing prosecutorial discretion in criminal law).
292. The limits might come from a substantive theory of due process that incorporates conceptions of proportionality, as in the Court's punitive damages jurisprudence-an approach that would avoid the long-standing holding that deportation is not punishment and therefore not subject to the constitutional constraints that govern the criminal justice system.
293. See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869 (2009).
294. See INA § 212(a)(6), 8 U.S.C. § 1182(a)(6) (2006).
295. SPENCER ABRAHAM & LEE H. HAMILTON, MIGRATION POLICY INST., IMMIGRATION AND AMERICA'S FUTURE: A NEW CHAPTER, REPORT OF THE INDEPENDENT TASK FORCE ON IMMIGRATION AND AMERICA'S FUTURE 41-42 (2006).
296. See Julia Preston & Steven Greenhouse, Immigration Accord by Labor Boosts Obama Effort, N.Y. TIMES, Apr. 14, 2009, at A1 (discussing advocacy by AFL-CIO and Change to Win for the establishment of an independent commission to monitor and control entry of immigrant workers).
297. Refugee Act of 1980, INA §§ 411-414, 8 U.S.C. §§ 1521-1524.
298. The calculation of immigration rates has been likened to the setting of monetary policy. But, "in contrast to setting interest rates, which are formally reviewed eight times a year on the basis of calculations by over 400 professional economists working for the Federal Reserve Board, immigration limits are locked into statutes that have been revisited, on average, less than once per decade." ABRAHAM & HAMILTON, supra note 260, at 41-42.
299. See Cox, supra note 237, at 1676-79 (discussing the possible appeal to courts of a nondelegation norm that prevents Congress from delegating basic questions about membership in the polity);
300. Rodríguez, Reciprocity in an Age of Migration, supra note 255 (discussing and critiquing the conception of the distribution of membership as a centralized process).
301. In the final years of the Bush Administration, several attempts were made to expand existing guest worker programs to enable the admission of greater numbers of workers, primarily through broadening the definition of the types of workers eligible for the temporary visas. This suggests that even a President with an expansive vision of inherent executive authority felt constrained to act within the delegation framework.
302. To be sure, Congress has been resistant in the past to delegations of this sort. During the drafting of the 1965 immigration reforms, the Kennedy Administration initially recommended the creation of an executive commission that would have had the authority to distribute unused visas during the period of transition between the national origin quotas system and the new regime established by the Act (the visas allocated to countries such as Great Britain, Ireland, and Germany, were underutilized, and the Administration sought to reallocate them, though not to increase the numbers of visas available). During his testimony before the House Judiciary Committee in 1964, Robert F. Kennedy was pressed on whether the President should be given such power. He invoked the already existing power of the President to exclude aliens in the nation's interest-today's § 212(f)-to support his claim that the creation of the Commission would not be out of the ordinary. In response, Representative Feighan emphasized that the existing power was only to "keep immigrants out," suggesting an intuition that there was an important difference between the power to admit and the power to exclude. See Immigration Hearings Before Subcomm. No. 1 of the H. Comm. on the Judiciary, 88th Cong. 424 (1964) (statement of Robert F. Kennedy, Att'y Gen. of the United States). In a retrospective on the 1965 Act, Senator Edward Kennedy describes as a "unique and creative" feature of the bill the "highly controversial" idea of an Immigration Board composed of members appointed by the President, as well as Congress, that would advise and assist the President, including on matters such as "the reservation and allocation of quota numbers and the admission of professional or skilled persons whose services would be needed by reason of labor shortages." Edward M. Kennedy, The Immigration Act of 1965, 367 ANNALS OF AM. ACAD. POL. & SOC. SCI. 137, 140 (1966). The intense congressional opposition to the Commission eventually led to its removal from the legislation. See id. at 143, 144 (noting the feeling in Congress that "the bill afforded too much authority to the President and his advisers at the expense of Congress" and that the House version of the bill stripped "any semblance" of the Commission from the legislation).
303. As noted above, one prominent proposal along these lines recommends creating an independent executive agency called "The Standing Commission on Immigration and Labor Markets," which would be tasked with making recommendations to the President and Congress for adjusting the levels and categories of immigration. ABRAHAM & HAMILTON, supra note 260, at 42.
304. Cf. Legomsky, supra note 2, at 708-13 (calling for the creation of an independent board to determine refugee admissions under the Refugee Act of 1980 in order to remove the influence foreign policy has had on presidents' judgments under the current system, as a way of promoting more equitable treatment in refugee admissions).
305. The power to select types could be delegated within the current statutory framework or by moving toward the sort of points system contemplated in late 2007 and used by other countries such as Canada. Under the point system debated in 2007, Congress would have expanded the criteria relevant for obtaining a visa but retained control over the parameters of the point allocation. In Canada, however, administrative agencies have some authority to raise or to lower the number of points associated with a particular criterion.
306. We say "transparently" because history has shown clearly that power over numbers inevitably provides at least some power over types. See Emergency Quota Act of 1921, 42 Stat. 5, repealed by Immigration Act of 1924, 43 Stat. 153 (purporting to restrict the numbers of immigrants from the Eastern Hemisphere for the clear purpose of restricting migrants of a particular type-those from southern and eastern Europe).
307. As a historical matter, there is some reason to expect different behavior. The President has often been more open to higher levels of immigration, as both the Bracero experiment and the saga of the literacy test vetoes underscore. Similarly, when he vetoed the McCarranWalter Act in 1952, President Truman emphasized not only his opposition to the continuation of the national origin quota system, but also his view of the need to admit more immigrants to contribute to the development of the United States. See Message from the President of the United States to the House of Representatives, 82d Cong., 98 CONG. REC. 8082 (1952) ("The overall quota limitation, under the law of 1924, restricted annual immigration to approximately 150,000. This was about one-seventh of one percent of our total population in 1920. Taking into account the growth in population since 1920, the law now allows us but one-tenth of one percent of our total population. And since the largest national quotas are only partly used, the number actually coming in has been in the neighborhood of one-fifteenth of one percent. This is far less than we must have in the years ahead to keep up with the growing needs of our Nation for manpower to maintain the strength and vigor of our economy."). This greater receptivity suggests that the Executive will, in fact, behave differently than Congress if given control over admissions policy. Of course, this dynamic arguably reintroduces the democracy concern alluded to above-that putting admissions policy in the hands of the President removes these decisions from the preferences of the public. We do not mean to minimize this concern, but it is important to emphasize that both Congress and the President are democratically accountable-they are simply accountable to different constituencies. Thus, the bare fact that the President has different policy preferences than Congress is not itself a reason to prefer congressional control over an issue.
308. See, e.g., Nicholas Bagley & Richard C. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1277-80 (2006) (discussing the limited utility of OIRA letters in prompting agency action).
309. Other forms of court review, through basic administrative law doctrines, might also prompt action. For instance, if the Executive were given the responsibility of setting visa limits on an annual basis, and also had the judicially policed responsibility of responding to the variety of interest group and public comments generated during the notice and comment period, some external pressure to regulate in a way commensurate with facts on the ground as opposed to ideological preferences might exist.
310. See supra note 271. The President also appears more likely to factor foreign policy concerns into his decisions about immigrant admissions. The history of the Bracero Program, the refugee crises of the 1970s and 1980s, and the debate over the Refugee Act all point in this direction. Stephen Legomsky also has argued that foreign policy concerns have significantly influenced the way in which the President has used his powers under the overseas refugee selection system. See Legomsky, supra note 2. Though between 1980 and 1995, the Cold War and its aftermath appeared to have influenced the President's decisions to admit mostly refugees from communist or formerly communist countries, refugees in recent years have come primarily from places such as Burma and Somalia, and applicants from China top the list of asylum grantees, along with citizens from certain South American countries. See KELLY J. JEFFERYS & DANIEL C. MARTIN, OFFICE OF IMMIGRATION STATISTICS, DEP'T OF HOMELAND SEC., REFUGEES AND ASYLEES: 2007 (2008). A foreign policy story can probably be told for each of these developments.
311. For one classic statement, see Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure, 57 LAW & CONTEMP. PROBS. 1 (1994). For a helpful qualification, see Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217 (2006).
312. For literature on this subject generally, see Laura S. Fitzgerald Cadenced Power: The Kinetic Constitution 46 DUKE L.J. 679, 742-52 (1997)
313. Victoria Nourse, The Vertical Separation of Powers, 49 DUKE L.J. 749, 761-88 (1999).