Constraint through Delegation: The Case of Executive Control over Immigration Policy

Abstract

This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law’s core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should create an executive branch agency, marked by indicia of independence, to set visa policy—an avenue increasingly contemplated by reformers. Though it may seem counterintuitive, delegation of greater authority can help constrain executive power by substituting a transparent process, subject to monitoring, for decisionmaking that occurs hidden from view. Delegation can also help overcome limitations in the legislative process that contribute to the current regime’s dysfunction, making immigration policy more efficient and effective. The Refugee Act of 1980 provides a parallel that is helpful in thinking through what it would mean to delegate ex ante admissions power to the executive.