The discretionary powers of the US Presidency have steadily expanded over the course of the 20th century. These powers are especially pertinent to immigration enforcement, which lies under the administrative authority of the Executive Office. This article briefly explains how these powers have been used to shape US immigration policy, but it also observes that, in recent years, they have proved ineffectual as a strategy for advancing the immigration policy interests of the Executive Office.
There’s nothing surprising about the observation that the US has become more invested in immigration enforcement over the past few decades. It’s important to note, however, that US immigration flows have expanded during this same period of time. The annual flow of immigrants and temporary arrivals today is twice as large as it was in the mid 1980s. Even though these migration flows have experienced a slight down turn with the onset of the recessionary economy, they are still quite large when put in historic perspective.2 When viewed in this light, it would appear that immigration enforcement has been expanded to manage a growing array of migrant flows and not to restrict these flows.
This phenomenon has not gone unnoticed by immigration scholars and it is not unique to the US. It has been described as the liberal paradox.3 On one hand, migrant recruitment is being liberalized, but this is combined with an “illiberal” concern for controlling migrant flows and restricting migrant rights. In the Immigration Crucible, I look at how this dilemma has unfolded within US immigration policy over the course of the 20th century. I also explain how this tension between the “liberal” and “illiberal” features of US immigration policy has been managed by governing strategies that have expanded the discretionary powers of the Executive Office. Practically speaking, this means that some of the most important aspects of US immigration policy have been shaped by decisions and negotiations that operate outside the realm of the law.
Distinctions of the US Executive Authority
One might expect that the expansion of the state’s discretionary authority would work in favor of a market-driven immigration policy that favors open borders (considering that the North American Free Trade Agreement and the US’s first guest worker program were both created by Executive Order). There is some merit to this argument, but it doesn’t tell the whole story. The historical record shows that the discretionary powers of the executive can be combined with a wide array of policy agendas — whether this entails expanding markets, building up national security or strengthening welfare entitlements. Moreover, regardless of how it is used, the reliance on these discretionary powers as a policy making tool tends to reinforce political dynamics that further centralize authority in the Executive Office.
The Executive Order and the State of Emergency are two of the core building blocks of this type of power, but they can also be regarded as its more rudimentary manifestations. The State of Emergency simply allows the executive to interrupt the rule of law for a period of time. Executive orders, on the other hand, can be used, more proactively, to initiate international agreements and special programs that interact with the law.
Executive orders and states of emergency can both be distinguished from the formal rule of the law. But it is also possible for the discretionary powers of the executive to influence the legislative process. States of emergency, for example, can set the stage for landmark executive decisions that permanently alter the legal and juridical landscape—two primary examples being the Emancipation Proclamation and the New Deal programs that laid the foundations for the post-War Keynesian state. It is also possible for the discretionary powers of the executive to be expanded by language that is written directly into the law. The 2001 PATRIOT Act, for example, expanded the ability of federal enforcement to engage in acts of warrantless surveillance, and granted the Executive Office the authority to define (or defer) the end date for these special powers.
These arrangements aren’t unique to the US, but there is something fairly distinct about the legacy of executive authority in the US. Unlike many European nations, the US has allowed this kind of authority to be almost entirely unregulated. There are no legislative or Constitutional guidelines that formally stipulate how the Executive Office may use these powers. As a result, the Executive Office is granted a fairly wide-ranging authority to develop unilateral policy solutions in response to any number of unexpected contingencies.
This largely unregulated approach to executive authority can be viewed in light of similar priorities that have historically shaped US immigration policy. As Christian Joppke has explained, the rights granted to noncitizens in the US tend to be more generous but less binding than noncitizen rights in Europe (using Germany as a point of comparison).4 In the US, noncitizen rights can be expanded by progressive court decisions and can also be influenced by the interventions of the executive, but they are not regarded as conclusive statements on the Constitutionality of the right in question. As a result, the scope and quality of noncitizen rights can fluctuate in significant ways over a period of decades. This fluidity is enabled by the plenary power principle which allows both the Presidency and the Congress, “unconstrained, judicially nonreviewable authority over the entry, stay, exclusion and naturalization of immigrant aliens.”5 This isn’t the only principle that has informed policy deliberations over noncitizen rights in the US, but Joppke makes a convincing argument that it has been the most
It’s not difficult to see how the principle of plenary power further validates the discretionary powers that the executive already wields over the law, and over the immigration in particular. It also sheds light on how executive authority has been consolidated by arrangements that allow its prerogatives to be shared by other political actors besides the executive. This relationship between the exercise of the executive-sovereign decision and the devolution of the executive’s discretionary powers is especially pertinent to the recent history of US immigration policy.
What the Bush Administration did for Immigration Policy
In 2002, the Bush administration and Department of Justice issued a series of internal memos which claimed that state and local governments had inherent authority to enact their own immigration laws (and that local police also had inherent authority to enforce federal and local immigration laws). The administration didn’t publicly acknowledge the existence of these memos until 2005, after it was forced to comply with a Freedom of Information Act request filed by the ACLU and a number of immigrant rights organizations. Putting aside the debate over the validity of the inherent authority principle, two things are clear: 1) these memos contradicted the prior several decades of legal opinion on the role of police in immigration enforcement and 2) they issued this new legal opinion in a way that completely circumvented the US court system.
The trickle down effect of these memos became apparent in 2004, as state and local governments began enacting laws that required proof of legal status to be shown as a precondition for accessing a variety of public and private services. Local governments have not enacted legislation concerning noncitizen rights, of this magnitude, for almost one hundred years (the closest approximation being the Alien Land Laws of the late 19th and early 20th centuries6). Since 2004, these local immigration laws have been proliferating steadily around the US. Over 1,200 of these laws and ordinances are currently in effect and state and local governments have been introducing new laws at a rather aggressive rate (surpassing 1,500 per year on average, for recent years, even though less than 15 percent actually get enacted into law in any given year).7
The memos that set this process in motion will probably be remembered as one of the most ambitious uses of executive discretionary authority in recent history (at least, as it concerns immigration law). In this case, the Executive Office was no longer using its authority to make exceptions to law, or to support legislation that expanded its own discretionary authority over the law. It used its discretionary powers to open up a new realm of law making. Moreover, the Executive Office used its discretionary powers to expand the discretionary powers of local governments. This process sheds light on the curious way that executive authority can appeal to a popular base – by granting local actors an authority over the law that mirrors the special powers enjoyed by the executive.
Even so, the reason why the Bush administration issued these memos is a bit more opaque. The inherent authority principle articulated by the memos is consistent with arguments advanced by legal scholars and activists who are in favor of immigration restrictions.8 But there is no evidence that the Bush administration ever supported a restrictionist agenda for immigration. In fact, the administration had a number of public altercations with Republican supporters of immigration control. President Bush openly criticized the actions of Colorado Representative Tom Tancredo, who become the most prominent leader of the immigration control movement in the 109th and 110th Congress. Bush administration officials also did not approve of the Minuteman, vigilante border enforcement movement and further raised the ire of immigration control advocates by co-sponsoring an immigration reform bill in summer of 2007 with Democratic Senator Ted Kennedy. Furthermore, when the Congress first began to seriously deliberate on immigration reform under the Bush Presidency, the Bush administration’s plan contained the fewest recommendations for enforcement of all the initial proposals—including those formulated by Democratic Congresspersons.
Despite its posturing on enforcement, the Bush administration’s stance on immigration was more consistent with that of the Reagan-Bush administration than immigration hawks like Tom Tancredo. As Daniel Tichenor has explained, the immigration policy of the Reagan-Bush administration was much closer to a free market position (conservative on migrant rights, but in favor of expanding immigration quotas)9 than a classic restrictionist perspective (which is conservative on both migrant rights and immigration quotas). So it’s ironic that the Bush administration’s most lasting impact on US immigration policy will probably be the internal memos that opened the door for the local immigration laws that have breathed new life into the immigration control movement (also considering that the 2007 immigration reform bill that was co-sponsored with Senator Kennedy failed to pass).
The secretive nature of the process that gave rise to these memos makes it difficult to ascertain exactly why the Bush administration chose to use its discretionary authority in this manner—though one of the more obvious possibilities is that it was looking to appease a Republican base that was becoming increasingly dissatisfied with its immigration agenda. In any event, it does illustrate that the Executive Office is inclined to use its discretionary authority in ways that are more hawkish than the official position it has taken on immigration policy. The actions of the Obama administration also seem to confirm this thesis. In this case, however, the most significant thing is what the Obama administration declines to do with its discretionary powers.
Obama’s Discretionary Powers
The Obama administration has made a point of using the rule of law (a slogan that was appropriated from immigration control advocates) to frame its immigration agenda. One message sent by this framing strategy is that the administration is going to be more cautious, than prior administrations, in the way it uses its discretionary authority. A good example is the administration’s decision to take the government of Alabama and Arizona to court over the controversial measures contained in their state immigration laws. These law suits indicate that the Obama administration is interested in reigning in the discretionary powers over immigration law that were expanded by the Bush memos.
A notable exception to these priorities emerged in 2010, however, when an internal memo concerning immigration enforcement was leaked to the public. Unlike the Bush administration’s memos, it did not advance a legal argument that contradicted existing legal precedent. It was an advisory that described the discretionary powers that federal immigration officers already had at their disposal to prevent or delay deportations. The advisory was interpreted by Republican lawmakers as a sign that the Obama administration was prepared to use its discretionary powers to legalize a large cross-section of the unauthorized migrant population. This was an exaggerated interpretation of what actually was in the advisory, but the fears of the administration’s critics were not wholly unreasonable. As the Bush administration internal memos demonstrated, executive authority can be used to do some radical things. Moreover, since these are unregulated powers, it is not possible to speak with any clarity about what is a normal or “legal” use of executive, discretionary authority.
The Obama administration has emphasized, nonetheless, that it will not be using its discretionary powers as a substitute for the reforms that might be contained in a new immigration law. There is evidence, however, that the internal memo has had some influence on immigration enforcement. Data from the first quarter of 2012 indicate that deportations are down 33 percent compared to the year prior.10 This is a significant decrease, especially given that deportation rates surged to historic highs the year after the Obama administration took office. But it still amounts to a decrease of no more than 20,000 deportation cases—a drop in the bucket compared to the scope of the reforms that would be implemented by a new immigration law (which, among other things, would have to implement a comprehensive strategy for sorting out the legal status of 11.2 million unauthorized migrants).
So even though the Obama administration has not wholly declined from exerting its discretionary powers over the immigration system, it does not appear to be interested in making sweeping, radical changes. This isn’t necessarily a bad thing. The Obama administration has probably made a wise decision by not letting the immigration policy debate get bogged down further with accusations over the “conspiratorial” use of its executive powers. But this situation only underscores the ineffectuality of executive, discretionary authority as a tool for immigration reform. It also demonstrates that the expansion of executive authority has not made the Executive Office omnipotent on all policy fronts. Or to put it another way, the expansion and normalization of discretionary authority as a governing practice, does not necessarily give the executive more freedom to act. In the abstract, it would appear that the Executive Office of today has more power than those of prior eras, but the political calculus through which this potential to act is converted into real action is another story.
The Future of Immigration in the US
The idea of legalizing unauthorized migrants or increasing immigration quotas is very controversial for many US citizens. Even so, it’s hard to believe that these reforms would bring about changes to the fabric of the US that are more dramatic than the Emancipation Proclamation or the New Deal. It’s also ironic that these earlier executive decisions—that were clearly defining moments in US history—were made when the discretionary powers of the Executive Office were not as expansive as they are today. And yet, it seems that the Executive Office of the current era is not able to use its discretionary powers to lead the immigration policy debate in this daring a manner.
Though it may appear otherwise, I am not arguing that the US Executive Office should be bolder in the way it uses its discretionary powers. The problem is that executive authority may not be the kind of power that is best suited for sorting through the complexities of the US immigration debate. One of the historic advantages of this kind of authority is that it allows the Executive Office to bypass the formal political process and the public sphere. But the executive can still pay a political price, after the fact, if the public, or rival politicians, take issue with the way they used their discretionary powers. In this regard, the discretionary powers of the executive have always been informally checked by the political reaction to their use of these powers. This situation leads to the following catch 22; the executive is granted the authority to make decisions without regard for the public opinion, but in order for these powers to be used most effectively, the public must be willing to be lead in this manner.
Theodore Roosevelt offered a revealing insight into this dilemma when he observed that the American people were in need of a “benevolent czar.” The problem with this philosophy of executive authority, however, is that the US citizenry are not always tolerant of “czars.” It’s also safe to say that the kind of deference and show of national solidarity that a “czar” would require is especially lacking in the sphere of immigration policy. This is perhaps why recent uses of executive power on immigration matters have tended to cater to the public opinion.
The Bush memos, for example, can’t be criticized for being an overly timid use of executive authority. But when all was said and done, they just added a new dimension to a get tough enforcement agenda that was already a well-established feature of US immigration policy. They didn’t lead the policy debate in a direction. Moreover, they only seemed to pander to restrictionist sentiments which didn’t accurately reflect the policy stance of the administration. Meanwhile, the Obama administration seems more concerned with avoiding flagrant uses of discretionary authority that might impede negotiations on a new immigration bill.
The decision of the Executive Office to use its discretionary powers in this manner indicates that there is an awareness of the limitations of the “czar” philosophy of executive authority. Behaving like a “czar” on divisive policy issues like immigration, where there is no strong consensus position, can be very counterproductive. On the other hand, crafting immigration policies that only seek to appease a divided public also leads nowhere. This doesn’t mean that the discretionary powers of the executive have no role to play in the future of US immigration policy. But it does indicate that, at the very least, there needs to be a new understanding of how these powers can be used. It seems that the challenges of the present day require a different orientation toward these powers; one that is not simply concerned with exempting the executive from the strictures of the law. This would be the power, not to circumvent or retreat from the reigning opinion, but to engage it—to cultivate a new body of opinion that could enable a new path of action.
About the author
Philip Kretsedemas is associate professor of sociology at the University of Massachusetts, Boston. He is the coeditor of Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today and Immigrants, Welfare Reform, and the Poverty of Policy. His most recent book is The Immigration Crucible: Transforming Race, Nation and the Limits of the Law, (New York: Columbia University Press 2012).
1. For the sake brevity, I have only provided footnote citations for direct references to scholarly sources I reference in the body of the article and other primary and scholarly sources that are exclusive to this discussion. Any piece of information that is not cited here is derived from data cited in, Philip Kretsedemas, 2012. The Immigration Crucible: Transforming Race, Nation and the Limits of the Law, (New York: Columbia University Press).
2. According to recent data, the growth of the legal permanent resident population in 2010 was down barely 1 percent compared to average growth over the past decade (2001-2010). The decrease in the size of the temporary visitor population was more appreciable (down 7 percent for this same period of time). Department of Homeland Security, Immigration Yearbook 2010, Tables 1 and 25. Unauthorized migration, in contrast, has not only stopped growing but experienced a 7 percent decline in the size of the overall population since 2007. See Jeffrey Passel and D’Vera Cohn, 2010. “Unauthorized Immigrant Population: National and State Trends, 2010,” Pew Hispanic Center. Accessed March 18, 2012: http://www.pewhispanic.org/2011/02/01/unauthorized-immigrant-population-brnational-and-state-trends-2010/
3. This term was coined by James Hollifield in the early 1990s, but it describes a dilemma that has been discussed by many other immigration scholars. For an overview see, James Hollifield, 2004, “The Emerging Migration State,” International Migration Review, 38: 3: 885-912.
4. Christian Joppke, 2001. “The Evolution of Alien Rights in the United States, Germany and the European Union,” in T.A. Aleinikoff and D. Klusmeyer, eds., Citizenship Today: Global Perspectives and Practices, (Washington DC: Brookings Institution), 36-62.
5. Joppke, 39.
6. For an overview see, Rose Cuizon Villazor, 2010. “Rediscovering Oyama v. California: at the intersection of property, race and citizenship,” Washington University Law Review, 87:5: 979+.
7. Based on 2011 estimates by the National Conference of State Legislatures, 2011 Immigration Related Laws and Resolutions (Jan 1 – Dec 7, 2011). Accessed March 18, 2012: http://www.ncsl.org/issues-research/immig/state-immigration-legislation-report-dec-2011.aspx. As I explain in The Immigration Crucible, some of these laws have actually been used to protect immigrant rights, but the fastest growing laws are ones that involve local police in immigration enforcement and that introduce new screening practices that require proof of legal status.
8. Kris Kobach, 2008. “Reinforcing the Rule of Law: What States Can and Should Do to Reduce Illegal Immigration,” Georgetown Immigration Law Journal, 22:3.
9. Daniel Tichenor, 2002. Dividing Lines: The Politics of Immigration Control in America, (Princeton, NJ: Princeton University Press), 219-241.
10. TRAC Reports. 2012 “Sharp Decline in ICE Deportation Filings,” Accessed March 18, 2012: http://trac.syr.edu/immigration/reports/274/.