New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Forthcoming Yale Law Journal, v. 119

Abstract

Congress’s plenary power to regulate immigration sharply limits the judiciary’s involvement in immigration regulation. Since the plenary power doctrine was first formulated, the Supreme Court has emphasized that immigration represents an issue best left to the political branches. The resulting extended focus by scholars on the implications of this distribution of power between courts and the political branches has obscured a second important separation-of-powers issue: the question of how immigration authority is distributed between the political branches themselves. The Court’s immigration jurisprudence has shed little light on this question, often treating the political branches as something of a singular entity. Surprisingly little scholarly commentary has addressed the inter-relationship between the two branches or attempted to discern whether consistent power-sharing patterns have emerged over time.

In this Article, we explore how the allocation of power between the political branches to screen immigrants has been understood both as a matter of constitutional history and as a matter of actual practice, with a view to better understanding the structure of American immigration law. We present a long-overlooked constitutional history according to which the executive has claimed inherent authority to screen and admit immigrants, But we demonstrate how this use of authority has been slowly domesticated by the rise of the administrative state and its associated jurisprudence, with the consequence that most executive policymaking in the immigration arena proceeds today through delegated authority. But this delegation has not always operated in obvious ways. We show that the explosion of a detailed, rule-bound immigration code has had the counterintuitive consequence of delegating tremendous authority to the President to decide the most basic questions about which types of noncitizens, and how many, should reside in the United States. But this delegation has been asymmetric: the President has considerable authority to screen immigrants at the back end of the system through its enforcement decisions, but little control over screening at the front end, before immigrants enter the United States. We argue that this asymmetric delegation has pathological consequences in certain circumstances, and we suggest two possible solutions: either formally delegating to the President the power to adjust the quotas and admissions criteria at the heart of immigration law, or seriously restricting the prosecutorial discretion of the President in the immigration arena.

Date of Authorship for this Version

March 2009