Adam B. Cox - The President and Immigration Law

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Adam Cox and Cristina M. Rodrguez 2020

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Library of Congress Cataloging-in-Publication Data

Names: Cox, Adam, author. | Rodriguez, Cristina M., 1973 author.

Title: The president and immigration law / Adam B Cox and Cristina M Rodriguez.

Description: New York : Oxford University Press, 2020. | Includes index.

Identifiers: LCCN 2019053087 (print) | LCCN 2019053088 (ebook) |

ISBN 9780190694364 (hardback) | ISBN 9780190694388 (epub) |

Subjects: LCSH: Emigration and immigration lawUnited States. |

Executive powerUnited States.

Classification: LCC KF4819 .C69 2020 (print) | LCC KF4819 (ebook) |

DDC 342.7308/2dc23

LC record available at https://lccn.loc.gov/2019053087

LC ebook record available at https://lccn.loc.gov/2019053088

To Aaron Dhir, Daniel and Gloria Rodrguez, and my family at 3418, with love and deep gratitude, and to Nina and Leela, with hope for the future.

To Courtney, Jasper, and Izzie.

We began our work exploring the Presidents power over immigration law more than a decade ago. We met early in our teaching careers at our first conference of immigration law professors in Las Vegas, where we discovered a shared interest in the way the structures of the Constitution affect immigration law and policy. In a subsequent conversation, we each expressed puzzlement at the lack of attention in immigration law scholarship to the separation of powers between the political branches. Most scholars seemed preoccupied with judicial review. This attention was understandable, given the importance of the courts to the protection of immigrants rights, and the fact that the seminal scholarship that had created the field of immigration law in the 1980s and 1990s focused on the judiciary. But we both believed that the dynamics between the President and Congress would reveal at least as much about how immigration policy was made, not least because the interplay would directly engage the politics of this perennial and volatile issue in American life. In the final years of the George W. Bush administration, we began our research to see what we might come up with, with a strong intuition based on our knowledge of history that presidential power would loom large.

This book not only reflects the culmination of this research, but it also stands for the wonderful friendship that grew up alongside it. We could not have written hundreds upon hundreds of pages together if we didnt so enjoy our conversations. We have succeeded as collaborators as the result of our great respect for one anothers points of view, our willingness to have our words completely rewritten by the other, and our shared commitment to understanding immigration law as a system, and as a vehicle through which to get to the bottom of some of the vital issues of our daynot just how to build and manage a legitimate immigration policy, but also how to think about government in the context of a highly charged economic and social issue.

Though we wrote the vast bulk of this book from scratch, many of its ideas are grounded in the two major articles we published in the Yale Law Journal in 2009 and 2015. Our thinking has matured considerably since we published those pieces, and synthesizing those ideas in a book seemed all the more urgent when American politics took a highly surprising turn in 2016. But we should recognize our intellectual debt to our past selves and to the editors of the Yale Law Journal, especially Amelia Rawls, Ruth Mason, and Megan Braun. In particular, we introduced the concept of de facto delegation in our 2009 piece and began our exploration of what would become our theory of policymaking of this book, with our claims about centralization and political control of the bureaucracy.

In researching the book, we deepened our inquiry and tested the ideas contained in our earlier articles by conducting more than a dozen field interviews with former high-ranking executive branch officials, all of whom helped craft presidential immigration and enforcement policy during the administrations of Bill Clinton, George W. Bush, and Barack Obama. We spoke to former civil servants, as well as political appointees. They spoke with us under a promise of confidentiality, and we therefore cannot name them here. But we express our deepest gratitude for their time and insight. We learned a tremendous amount from them about the complexity of the immigration bureaucracy and about the immigration politics of the last three decades.

Over the last four years we have spent writing this book, we have benefitted greatly from myriad conversations with colleagues and friends, as well as from targeted feedback from extremely generous readers. First and foremost, we would like to thank the scholars who participated in the two roundtables that we convened at the NYU School of Law, one in the summer of 2016, the other in the winter of 2017. We are deeply grateful to these friends and intellectual inspirations for taking the time to read all (or at least most) of the manuscript in various stages of completion. For their incredible generosity in engaging us, we thank Rachel Barkow, Jessica Bulman-Pozen, Daryl Levinson, Gillian Metzger, Trevor Morrison, Hiroshi Motomura, Nick Parrillo, Rick Pildes, Eric Posner, David Pozen, David Sklansky, and David Strauss.

We also have benefitted enormously from feedback about discrete chapters and ideas, especially because we received it in a dynamic fashion, as we developed our claims in response to our research, and in light of changing events in the world around us. For their invaluable insights, we thank Bruce Ackerman, Ahilan Arulanantham, Michael Churgin, Joseph Carens, Joshua Cohen, Bill Conklin, Sam Erman, John Ferejohn, David Golove, Lucas Guttentag, Gillian Hadfield, John Harrison, Joseph Heath, Dan Hulsebosch, Aziz Huq, Joshua Kleinfeld, Peggy Kohn, Harold Koh, Lewis Kornhauser, Anita Krishnakumar, Mattias Kumm, Marty Lederman, Sandy Levinson, Audrey Macklin, John Manning, David Martin, Tom Miles, Henry Monaghan, Caleb Nelson, Sai Prakash, Daphna Renan, Daniel Richman, Daria Roithmayr, Emily Ryo, Ayelet Shachar, Stephanie Silverman, Sarah Song, David Spence, Rose Villazor, and Joseph Weiler. We also feel fortunate to have had the opportunity to present chapters of the book at outstanding workshops at law schools across the country, and we thank participants in the following: the Berkeley Workshop in Law, Philosophy, and Political Theory; the Harvard Public Law Workshop; the NYU Colloquium on Law and Politics; the NYU Global and Comparative Law Colloquium; the NYU Legal History Colloquium; the University of Chicago Public Law Workshop; the USC Center for Law and Social Sciences Workshop; the University of Toronto, Centre for Ethics, Ethics at Noon Seminar; the University of Toronto Faculty of Law Legal Theory Workshop; and the faculty workshops at Cardozo Law School, Columbia Law School, NYU School of Law, St. Johns Law School, University of Virginia School of Law, UCLA School of Law, USC Gould School of Law, the University of Texas at Austin School of Law, and Yale Law School (multiple times).