The biggest immigration controversies of the last decade have involved policies produced by presidents. Earlier this month, legal scholars Cristina Rodriguez, Adam Cox, and Michael McConnell joined National Constitution Center President and CEO Jeffrey Rosen to explore some of those controversies and consider what the president’s role in immigration law has been and should be, what the Constitution says, and how Congress fits in. Rodriguez and Cox are co-authors of the new book The President and Immigration Law.
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PARTICIPANTS
Adam Cox is the Robert A. Kindler Professor of Law at New York University School of Law. Before coming to NYU, he was a professor of law at the University of Chicago Law School. He is the author of The President and Immigration Law (co-authored with Cristina Rodríguez). His writing has appeared in the Yale Law Journal, Stanford Law Journal, Journal of Law and Economics, and many other scholarly publications, and has been covered by The New York Times, the Los Angeles Times, and others. Cox previously served as the Karpatkin Civil Rights Fellow for the American Civil Liberties Union and practiced at Wilmer, Cutler, and Pickering, where he first litigated immigration cases.
Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. His new book is The President Who Would Not Be King: Executive Power Under the Constitution and his upcoming book, Establishment of Religion: Neutrality, Accommodation, and Separation, will be published in 2021. His other books include, Scalia's Constitution: Essays on Law and Education and Religion and the Constitution. McConnell has argued 15 cases in the U.S. Supreme Court.
Cristina Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. She is the author of The President and Immigration Law (co-authored with Adam Cox). Rodríguez previously served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice, was on the faculty at the New York University School of Law, and has been Visiting Professor of Law at Stanford, Harvard, and Columbia Law Schools. She is a non-resident fellow at the Migration Policy Institute in Washington, D.C., a member of the American Law Institute, and a past member of the Council on Foreign Relations.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
The President and Immigration Law, Adam Cox and Cristina Rodríguez
The President Who Would Not Be King: Executive Power under the Constitution, Michael McConnell
This episode was engineered by Greg Scheckler and produced by Jackie McDermott, Tanaya Tauber, and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center, the podcast sharing live constitutional conversations, hosted by the National Constitution Center. I'm Jackie McDermott, the shows reducing the biggest immigration controversies of the last decade have involved policies produced by presidents. Earlier this month, experts Cristina Rodriguez, Adam Cox, and Michael McConnell joined NCC president Jeffrey Rosen to explore those controversies and consider what the president's role should be in immigration law.
Cristina and Adam are the coauthors of the new book, "The President and Immigration Law." Here's Jeff to get the conversation started.
Jeffrey Rosen: [00:00:39] Adam, Michael, and Cristina, thank you so much for joining.
Michael McConnell: [00:00:43] Always a pleasure.
Christina Rodriguez: [00:00:44] Very happy to be here.
Adam Cox: [00:00:46] Thanks so much for having us.
Jeffrey Rosen: [00:00:47] I'm so happy to have the three of you here.
Cristina, let's begin with the thesis of your important, new book, "The President and Immigration Law." In that book, you argue that the conventional wisdom that Congress has plenary authority under the Constitution to regulate immigration and that the president has unconstitutionally usurped that authority is wrong. In fact, you argue Congress largely delegated authority over immigration to the president in the 20th century and the presidents of both parties, who have exercised that power broadly, may have acted wisely or not, but they have not acted unconstitutionally. Tell us more about the thesis of your book.
Christina Rodriguez: [00:01:31] So, we begin from the premise that the president's power over immigration law is visible everywhere, and it's not just a product of our current polarized politics. It's something that's deeply rooted in our history. We focus primarily on the way that power has evolved over the course of the 20th century and into the 21st. And roughly speaking, there are two sources of that authority.
The first is there are a number of delegations from Congress, express delegations of statutory authorities, that empower the president. Some of these are quite breathtaking in scope. The one that has arguably become the most famous these days is Section Two 12 F of the Immigration and Nationality Act, which authorizes the president to exclude any aliens or any class of aliens, if he thinks their entry would be detrimental to the interests of the United States. This is the authority on which President Trump based his so-called travel ban that restricted the entry of nationals from Muslim-majority countries at the beginning of his term. It's a power that's existed in the code since 1952, and one that other presidents have used advanced various foreign policy and national security aims, though few with the breadth that Trump has used it.
That is an example of some of the most sweeping delegation that exists, but the other really important source of authority that we spend a great deal of time on that's reflective, not just of the express power that the president has, but also the way in which the president has been able to take advantage of his office to exert power, is through various presidents exploitation of what we call interstitial bureaucratic authoritie-- seemingly narrow provisions that might look like they're present to enable a case by case management, but which presidents have actually used and exploited to pursue much greater visions or longer term agendas. The best example of that is called the parole power.
It's a power that allows the president to let people into the country, if they might otherwise be excludable because they need emergency medical treatment or need to be a witness in a trial, for example. But throughout the late 20th century, this was one of the episodes we document, presidents use that authority to admit tens of thousands of refugees, mostly from former communist bloc countries. And this, we argue, is the foundation of our contemporary refugee system. And it's really an extraordinary combination of presidential initiative, with foreign policy and humanitarian vision that have shaped our, our laws for decades since. I think Adam will talk about other sources of authority that define the president's role within our constitutional system.
Jeffrey Rosen: [00:04:17] Thank you so much for that. Michael, you heard Cristina's summary of the thesis of her book with Adam, and you've also read the book. Do you agree or disagree with the thesis and how does it square with your, and what would you, rather than what would the framers have made of the president's plenary authority over immigration drawing on the insights of your forthcoming book, "The President Who Would Not be King"?
Michael McConnell: [00:04:43] Well, let me say, first of all, I think it's an outstanding book and the details are very carefully researched and, you can learn, anyone can learn a great deal about this. I thought I knew a fair amount about the topic, and I learned something from practically every page.
Now, I begin in a different point than the authors do, though. I, I like to begin with the Constitution. And the president has zero inherent power, no inherent power, over immigration at all. For the first hundred years, it was even quite contested whether the federal government itself was the power holder with respect to immigration.
Congress is given power with respect to naturalization, but immigration isn't mentioned and luminaries like Jefferson and Madison, believe that authority over immigration was actually one of those powers left to the States. And with the controversial exception of the Alien and Sedition acts under president Adams--and I hope we'll have the chance to talk a little bit about it, cause it's so interesting-- the federal government did not in fact exercise immigration power until toward the end of the 19th century with, and then with the Chinese exclusion acts, which I don't think are exactly an advertisement for enlightened, public policy.
Now, and so the president's powers here are entirely those that are given to him by Congress. Now I, what Cristina says that Congress has actually given the president, delegated to the president, vast-- she uses the word breathtaking, and that's exactly right-- as vast a discretionary authority. But, amazingly, both President Trump and President Obama have gone even beyond that, in my opinion.
So, I think that there have major actions in both administrations, in my opinion, exceed even that breathtaking discretion because the ... both administrations, both Obama and Trump have not just, exercised discretion in areas where Congress hasn't spoken, but they have used their discretion to oppose enacted law, things passed by Congress. And, in my opinion, that is not an appropriate use of presidential power that, that all that exec and enforcement discretion that Cristina refers to is intended to be enforcement discretion to take care that the laws be faithfully executed, quoting from the Article Two of the Constitution, not for the president to go off on his own.
Jeffrey Rosen: [00:07:33] Adam, Michael mentioned the controversy over the Alien and Sedition acts; you and Cristina discuss it at the beginning of your book. And you note that the most controversial of the acts was the Alien Friends Act, which ignited fierce opposition by giving the president power personally to order the deputation of all aliens, as he shall judge dangerous to the peace and safety of the United States, the power was not fettered by judicial process, you say, nor was it subject to any meaningful congressional control. Tell us more about the debate over the Alien Friends Act. What happened with it? And what does it tell us about the framers understanding of presidential and congressional authority over immigration?
Adam Cox: [00:08:15] So, the fierce opposition that was ignited over the Alien Friends Act, you know, as Michael suggested, existed partly because many prominent figures at the time of the founding believed that perhaps the federal government lacked any authority to regulate immigration or at least to regulate immigration with respect to alien friends. Right, the power to deport enemy aliens was, widely understood to be a power that was held by the federal government, but alien friends were different, a different matter.
And so partly it was a fight over federalism. Then partly, as you say, it was a fight over the conception of separation of powers that existed at the time. And there was real concern about giving the president the power, without a judicial trial, to deport a person whom the president believed to be dangerous to the interest of the United States.
Now, over the course of the 19th century, as Michael noted, there were two transformations that took place with respect to the constitutional architecture of American immigration policy. The first was that the Supreme Court eventually articulated a very powerful conception of national authority to regulate migration. So, today nobody doubts that the federal government has the power to pass a sweeping immigration laws of all sorts. And we have a multi-hundred page federal code doing just that.
The second was that the courts actually did affirm the idea that non-citizens could be excluded from the country, and in fact, deported from the country without a judicial process. Right, without a trial before a federal court. And it's the creation of that executive branch administered deportation power, in a way, that is part of the origin story for our account of the president's power. Because our belief is that over the course of the 20th century, the growth of the deportation state, combined with the expansion and rising rates of unauthorized immigration in the latter part of the 20th century, produced a kind of profound mismatch between immigration laws in the books and what immigration looks like on the ground.
The most important statistic today about immigration policy is that there are roughly 22 million non-citizens living in America. Nearly half of them, almost 11 million, are here without legal permission. That's an enormous shadow system. And it means that the laws on the books become less important, and what matters more are the choices that executive branch officials, all the way up to the president, make about how and when to enforce the immigration laws.
Jeffrey Rosen: [00:10:44] Michael, what does the controversy over the Alien and Sedition Act and particularly the Alien Friends Act tell you about the original understanding of the founders and tell us also about Jefferson and Madison's response to the Alien and Sedition acts in the Virginia and Kentucky resolutions.
Michael McConnell: [00:11:03] Well, what I think is so interesting about the controversy is that even way back then, this is in the 1790s, the arguments are so similar to what we're still arguing about today. And so, Jefferson and Madison opposed the Alien Friends Act essentially on three grounds. One was that the national government lacked power, and as Adam said, at least as a matter of Supreme Court doctrine, that is now completely... we no longer believe that.
Although, I would say there are those of us who believe that the States do have residual power, where what they do has not been preempted by the actual statutory enactments by Congress. But the second two objections, are still alive and well. One has to do with process, whether, people can be deported without a hearing and we have constant arguments about that on the, on our border with Mexico today. Many of the, of the Trump policies, have to do with trying to cut back on, the, on the rather time consuming process from the point of view of the administration, the process is so cumbersome today, that they can't do it quickly and they don't have room to keep these people and so they just release them into the, into the country and then they, they basically disappear. That's the administration story, and it's not that different from the arguments at the founding. And then the third argument was that the Alien Friends Act was an excessive delegation of power and that's a very live issue in the Supreme Court today, with especially Neil Gorsuch, championing a narrower role for a delegation. I don't personally think that that's necessarily correct , but the issues are alive and well.
So, the Alien Friends Act did pass. And so in a sense, the founders, you know, the majority of the founders, in Congress supported it, but it had a five-year sunset clause. And almost as soon as Jefferson became president, it lapsed and it was not reenacted and nothing like it was reenacted until close to the end and of the, of the, 19th century.
So in a sense, Jefferson and Madison won that battle. Although, I think the real...I mean actually, what I think we can see is that there were two, this was a lively debate between the two sides. Now, what Adams says about the modern state is entirely true. Much of it was approved by the SupremeCourt on what I would regard as rather sloppy grounds in the immediate aftermath of World War II. But things didn't get to be extremely contentious until my adult lifetime. So, Adam mentions the fact that, that there are now what, 11 or 12 million persons, living in the United States in violation of the immigration laws, and that's a really weird situation, but it's also a very new situation.
I learned from their book in fact, that in the early 1970s, that number was only a million. So this is, a lot of these practices are extremely recent, and the question that I would have for the authors, they seem to accept whatever the current, you know, situation is, the legal situation is, and say, well, that's just the way it is and it's fine. But I wonder whether things that have happened over the last 20 or 40 years aren't... shouldn't be put a little bit more under a constitutional microscope.
Jeffrey Rosen: [00:14:47] Well, let us apply that microscope to some case studies that are central to our recent constitutional history. And let's begin with the dispute over DACA. That's the deferred action for childhood arrival policy. Cristina, you devote a good part of your book in chapter six to using a case study about DACA, as an example of the Obama administration's effort to centralize control over the exercise of enforcement discretion, DACA, you know, resulted in nearly three quarters of a million young immigrants getting protection from deportation, and it was among the most significant changes to U.S. immigration policy in a generation. Tell us about the Obama efforts to defer deportation through DACA and whether or not you believe that they were consistent with the Constitution.
Christina Rodriguez: [00:15:40] So DACA, we think, reflects the culmination of a centuries long evolution in the system of enforcement and is an exemplar of the president's exercise of his duty to take care that the laws be faithfully executed, as a form of management of this enforcement regime. The defacto authority that Congress has delegated to the president by virtue of enabling the rise of a system, which has deep roots in the early 20th century, is not just a contemporary product. It reflects the centrality of executive branch judgments to the management of the system as a whole.
And so what DACA represents was the effort by the Obama administration to supervise and control line-level enforcement agents in order to serve the enforcement priorities of the Administration. An important part of our book is a defense of the notion that presidents can pursue priorities in the way that they enforce the law, and that those priorities can emanate from their own policy vision, even though they remain bound by the terms of the statutes that they are enforcing. Early in the Obama administration, officials within DHS, tried to guide line-level agents by issuing documents that suggested that the choose to use their deportation resources, not against people who'd been present in the United States since they were children or people who had strong ties or were otherwise graduates of high schools or had served in the military, but instead to focus resources and to make the targets of enforcement people who committed criminal offenses, for example.
That guidance didn't prove to change the way in which the enforcement system was running fast enough for the Obama administration. Both for political reasons, as well as because of the interest in supervising this law enforcement bureaucracy, eventually by 2012, the Administration settled on DACA as the way to both articulate enforcement priorities at a high level, and then ensure that the bureaucracy would follow them.
And, as a result, they created a program that enabled people to apply for what's known as deferred action status, which is, a form of forbearance of removal that various executives have used for a long time to manage this discretion that they have to decide where there might be instances where enforcement might not be appropriate.
DACA uses that on a categorical scale and specifies that it's people who meet this key criterion, that they were brought to United States as children and their lawful status is not the result by implication of choices that they made as adults. The reason it's controversial or remains controversial is because it appears to extend a kind of relief to large categories of people.
But we think it's vital to understand that what DACA was, was an attempt to shape the zone of enforcement over which the president does have authority and control to conform to the priorities the president had set, which in our view consists in recognizing the sociological membership of the DACA recipients.
And there was nothing unconstitutionl about attempting to supervise line-level bureaucrats, and to ensure that they conform to an administration's priorities, as long as the way in which that is accomplished doesn't violate any statutory strictures, which DACA does not. It falls within the ordinary concept of forbearance and under-enforcement.
Jeffrey Rosen: [00:19:22] Michael, the Trump Administration, of course, attempted to rescind DACA. And its decision was ultimately rejected by the U.S. Supreme Court, which held in the Department of Homeland Security versus California decision in November of 2019, that the decision to rescind was arbitrary and capricious under the Administrative Procedure Act.
Now, these two cases are extremely complicated, legally and constitutionally. First, using your wonderful explainer modes, I'd like you to explain what were the arguments that led the Supreme Court to divide four to four on whether the initial Obama policy was consistent with law and then led the court to split five to four on the fact that the Trump rescission was not consistent with the law, and then please give us your own views about whether the initial policy and the rescission were or were not consistent with the law.
Michael McConnell: [00:20:15] So the legal issues as to whether the original Obama DACA and DAPA policies --there were two, one applying to children and another to parents-- whether that was lawful as one question and then there's an entirely different set of issues about the rescission, once that's in place. I'd like to talk first about the original Obama policy, which was invalidated by the fifth circuit court of appeals, and that decision affirmed by the United States Supreme Court by equally divided four to four vote, and I want to stress thata four to four affirmance, leaves the lower court decision in place, but does not, does not establish Supreme Court precedent that it's correct. I do think that the fifth circuit decision was, however, correct. And I, I have to disagree with Cristina on this. I think that the DAPA and DACA policies were sharp breaks from what we have seen before, not only in immigration law, but in law enforcement in general. Because, they were not mere fourbearance or priority setting. They were that in part, and actually the fifth circuit said that's fine, that the idea that the president can prioritize, and the use of enforcement, scarce enforcement, our resources is not controversial. And actually the categories that president Obama identified were not particularly controversial. It wasn't very different from the enforcement discretion regime that had been in place more informally under the Bush and prior administrations.
What was different is that they weren't merely forbearing from deportation. They were actually giving the identified individuals a kind of lawful status. They were literally given a laminated photograph ID, which gave them the right, not only to remain in the United States, but to... for work permits, social security, benefits, all kinds of other-- driver's licenses-- all kinds of, public benefits.
A nice analogy here, I think is speed limits. The police can't stop every-- think about a highway with a 65 mile an hour speed limit-- they can't stop everybody who's speeding, and so they have certain priorities, like, you know, you have to go more than five miles an hour over the limit, or you have to be doing something-- there are all kinds of things, but that doesn't give anyone the right to exceed the speed limit. The DAPA and DACA policies is as if the sheriff decided: you, you, you and you, I'm going to give you a laminated card that gives you the right to violate the speed limit, and in addition to that, that's going to give you a number of benefits that Congress has said are not applicable to people who are here illegally.
Now, I think that I have no problem with this as a matter of policy. I would have voted for it. But Congress considered this, Obama went to Congress and tried to get Congress to pass a legislation similar to this and they did not do it. Obama himself said on, I think, 16 different occasions, that he lacked the power to do this. Even when he did it, he said he was changing the law. Well, the president does not have the power unilaterally to change the law. Changes to the statute have to be made by Congress. Now, the rescission, under Trump, was struck down by the Supreme Court, in my opinion, in a very unpersuasive decision.
But what the court held was that, although the president does have the authority to do that, that he had to go through some process of, because of reliance interests by people who were the beneficiaries of the Obama policy, because that had been in place, that the administration had to use more procedures and, more administrative procedures, particularly notice and comment rulemaking, before going the opposite direction.
Jeffrey Rosen: [00:24:35] Thank you very much for explaining those arguments so clearly. Adam, let's turn now to President Trump's travel ban. In your book, you note that critics of President Trump's travel ban, including the ninth circuit court of appeals insisted that the policy deviated from the authoritative system Congress had enacted for identifying and excluding security threats.
You know, similar arguments were raised to criticize President Reagan and President Clinton, but you reject the idea of that comprehensive immigration system screening put in place by Congress includes the executive branch from wielding discretionary authority in ways that supplant procedures mandated by Congress. Although, you say you do have to look at the specific details of the policy and laws to make a judgment in each case. So, do you believe that the Supreme Court was correct to uphold President Trump's travel ban in the decision Trump vs Hawaii, a five to four decision, or not, and tell us about the arguments on both sides.
Adam Cox: [00:25:33] Great. So, I think Cristina and I don't agree that the Supreme Court was right to uphold the travel ban in this decision, but we do agree with the statutory portion of the Supreme Court's decision.
So, the Supreme Court confronted two challenges to the executive order suspending the entry of immigrants from a number of Muslim countries. The first challenge was that the president had exceeded the power delegated to him under the Immigration and Nationality Act, in this authority that Cristina noted earlier, gives the power to the president to suspend the entry of any alien or class of aliens where the president deems their entry detrimental to the interest of the United States. So, that was the first challenge. There was a second, and in our view, even more important challenge to the president's action, and that was a constitutional challenge that argued that, that president's decision to ban non-citizens from a number of majority-Muslim countries, amounted to unconstitutional discrimination in immigration policy on the basis of people's religious beliefs.
So, our view is that the court got that part of its decision wrong. And at a minimum, our view is that the court had an obligation to actually engage in an inquiry into whether the actions suspending the entry of those immigrants was motivated by religious animosit, and if it was, we believe under existing law, that it should have been held to be unconstitutional. But, it is true that we think the statutory authority was sweeping. Now, in a way, our thinking about the suspension power that Congress gave the president aligns really with our thinking about Obama's decisions to implement the DACA and DAPA programs. So, as Michael suggested, you know, our view is that the statute itself confers broad authority in the president because it doesn't provide-- contrary to, you know, what Michael suggested, I think we disagree-- it doesn't provide restrictions that prevent the president from exercising his enforcement authority, in the case of DACA, or suspension authority, in the case of the travel ban, in the way that presidents did.
For DACA, for example, I think the important thing to recognize is that DACA as a program did not grant non-citizens lawful status. Michael's right. It gave people the laminated card, but it was actually a card that embodied a set of choices that Congress itself had made because, while many non-citizen live in America in violation of immigration law, Congress historically has recognized that fact and on many occasions said that it thinks it makes sense for people who are unlawfully in the country to be permitted to work lawfully. Now, that might sound like a bit of an oxymoron--that you can be unlawfully in the country and yet work lawfully, have work authorization-- but that is in fact, something that Congress has said in respect to asylum seekers, for example, who are lawfully in the country while they seek asylum, and Congress further said that the attorney general has authority to deem other classes of people eligible for work permission. And so I think, that tells us that the efforts to cabin the president's power, by looking to specific provisions of immigration law as restricting the president's authority, misses the larger architecture of th system, which has really delegated tremendous policymaking power to the president.
Michael, Adam has identified two big argumentsJeffrey Rosen: [00:29:09] in the travel ban case as the Supreme Court considered it. First, do you agree with the court that the president had authority under the sweeping statutory power that Congress delegated to issue the travel ban or not? And second, what do you make of the argument that the court rejected, but Adam endorsed, that the decision was motivated by unconstitutional animus?
So, I do agreeMichael McConnell: [00:29:37] with the court and with Adam on the statutory question. The delegation of authority to exclude classes of aliens is very sweeping. The big contrast here with DACA and DAPA is there is no such, there is no parallel delegation of power to allow people to come in, who are not authorized by Congress. So, the president has the power to exclude, not the power to admit. And that's why the two situations are so entirely different.
Now, the second question about discrimination is a very hard one, and especially-- and Mr. Trump is the one who made it hard, by his inflammatory and seemingly bigoted statements on the campaign trail.
And so, but it is legally tricky because ordinarily discrimination is covered by the Equal Protection Clause, but the Equal Protection Clause expressly refers only that-- it says that no state may not deny equal protection to persons within their jurisdiction. It does not apply abroad. And so that's why the plaintiffs brought the case under the Establishment Clause of the First Amendment, rather than under the usual equal protection provision. It is not at all clear that the Establishment Clause applies abroad -- that has never been held and the Supreme Court kind of punted on the issue -- and the issue of intent is complicated because, generally speaking, under the Establishment Clause, what we say is that a policy is constitutional if it has a plausible, secular purpose. We do not ask whether it might also have a religion favoring purpose. And under an unflinching application of that, well, I think longstanding Establishment Clause, a doctrine probably supports the court's conclusion. But, I do agree with Adam that that is a much better and much harder and much closer question.
Jeffrey Rosen: [00:31:49] Well, let us turn next to President Trump's decision to declare a national emergency at America's southern border and his efforts to build the wall.
Cristina, you begin your boo with an account of this dramatic incident. So, I'll ask you to tell it: what did President Trump do when he declared the national emergency? What happened when Congress voted to overturn the president's declaration of emergency and the president vetoed that decision? And what did the president do next, and was it consistent with the law?
Christina Rodriguez: [00:32:23] So, one of the things that makes this episode dramatic is that you have a rare instance of a separation of powers conflict, when the two branches are controlled by the same party. So you have unified government and yet a conflict between the president and Congress.
So, Donald Trump declares a national emergency under the National Emergencies Act, that he says necessitates erecting a wall at the border. Despite the fact that the Congress had refused to appropriate money, Congress has the power of the purse, the authority to appropriate funds to the government, despite the fact that Congress failed to appropriate money to the border wall, President Trump issues this emergency declaration. And the effect of that declaration is to unlock a variety of other statutory authorities. There are actually many of them, some of which give the president sweeping power in the context of the emergency that he has declared. The NationalEmergencies Act does not contain any standards, really, with which to judge whether an emergency exists and doesn't demand very much of the president.
But Congress, seeing that what the president was effectively trying to do by declaring this emergency and then trying to use some of the corresponding statutory authorities that involved military construction to build the border wall that they have rejected, attempts to overrule, or does, override the declaration of national emergency.
So, it's a clear indication from Congress on two levels, both through its failure to appropriate funds to the border wall in the first place, in a straightforward fashion, and then by a rejection of the national emergency that it's not interested in the president's border wall. Where we are today is that the matter is mired in litigation and it gets technical very fast because the legal question becomes whether those statutory authorities that involve military construction projects and potentially other sources of funding can be repurposed under the terms of the statutes. And some of those appropriations laws do give the president the authority to repurpose funds, but it's far from clear that this declaration of a national emergency at the border and the need to build a border wall law specifically actually falls within those statues.
And so it's making its way through the courts that are largely focused on the statutory question though, of course in the background is skepticism about whether there was truly a national emergency in the first place, even though the statute, the National Emergencies Act, doesn't impose standards or fact-finding requirements on the president. There is a sense in which we know an emergency when we see it, and this is not it. It's manufactured for the purposes of trying to build a border wall, which was one of his central campaign promises, and clearly a fixation of his. The border has long been a place where presidents have asserted their muscle and their authority to make it seem like they're in control, both of national security and of illegal immigration. And it just has come to a head in the Trump Administration because of the use of this particular emergency power and all that that entails.
Jeffrey Rosen: [00:35:35] Thank you very much for telling that story so well. Michael, someone who champions congressional authority over immigration might be surprised that the president would be able to issue an emergency over Congress's strenuous objections, including attempting to override his emergency declaration. And yet, Cristina has just explained that the issue is legally complicated, given the range of congressional delegations to the president. Do you believe that Congress does have the authority to stop the president? Or put another way, can the president proceed in the face of congressional disapproval? And how are these cases likely to come out and when will they be decided? It sounds like they won't actually be resolved until after the election.
Michael McConnell: [00:36:18] Well, I think I agree with everything that Cristina said. Let me just add a couple of points that I doubt that she will disagree with, but what may amplify it.
First of all, I think a lot of people misunderstand emergencies. The president has no constitutional authority, I mean, there's nothing in the Constitution that lets the president declare emergencies. Sometimes when you listened to Mr. Trump, you would think that this is, you know, something, you know, part of the presidential function. It's no. There is, however, a National Emergencies Act passed by Congress that as Cristina said, has no standards, really. The president has very broad discretion to decide what an emergency is, but it doesn't mean he can do whatever he wants. The Emergencies Act triggers, I believe it's 186 -- don't take me to court on that number, but I think it's 186-- specific statutes, where it kind of unlocks power under those statutes. And in this particular case, it has to do with unlocking power for the president to shift funds from one military account to another. So, Congress may have funded one particular military expenditure and the president in an emergency can use those funds for another military effort.
I think the legal question, and I suspect Cristina agrees with this, that the real question is: is building a wall on the border, a military operation? I would call it a law enforcement operation, and we have a long tradition in this country that the military does not engage in ordinary law enforcement operations, even President Trump's orders to the military to become involved on the border were very cagey. If I understood them correctly, he used the military for support operation, for sort of dealing with infrastructure, but not for actual law enforcement of the immigration laws at the border itself, which I think is a kind of concession by the Administration, that the actual border enforcement is not really a military operation. And if so, then I think President Trump exceeded his statutory powers, even given the enormous breadth of the Emergencies Act. And I just like to drop a footnote here that Congress, this is Congress' mess, that they pass this extremely broad act thinking that they would be able to reign it in through the use of a legislative veto-- that was something that was held unconstitutional in the 1980s, but where the president does something Congress can disapprove of it without the president vetoing it.
Well, that's fine. They didn't know that the Supreme Court was going to hold legislative vetoes unconstitutional, but after the court did that, the Congress reenacted the statute with, instead of a legislative veto, Congress has the power to pass a statute override riding the president's decision. Both houses of Congress under a Republican Congress passed such a statute, but President Trump vetoed it and they didn't have enough votes to override his veto. This is, I think this is something that Congress needs to revisit because, they have given away the store. They've... this is a way to broad set of powers to be exercised by the president without any control. And I don't, and I don't care whether it's Trump or Obama or Biden or wh. Any president.
Jeffrey Rosen: [00:40:12] Well, this is the time to ask, what has to be done? And Adam, in the conclusion of your book with Cristina, you argue that, despite the futility of the critique that basically says Congress has usurped, or rather that the president has usurped Congress' authority over immigration law, you say, the real problem lies in what you call the problem of the discretionary nation. The system implicitly constructs nearly half of the non-citizens in the United States as legal non-subjects. And you say, addressing this problem doesn't require displacing the president. Instead, it requires both judicial oversight, but also, shared commitment by the Congress and the president to turn away from the enforcement logic of our present regime. Tell us more about your proposed solution.
Adam Cox: [00:41:00] Right, so, you know, as you just read from our epilogue, I think we, you know, our view is that in our present moment, in a world where America runs this enormous shadow immigration system, it would be a mistake for Congress, with a bludgeon, simply to try to restrict the president's power to supervise the enforcement bureaucracy.
So, the reason why we think DACA and DAPA as programs were lawful is the same reason why we think it's important to permit the president, to supervise that regime. The choice is not between, you know, enforcing immigration law and not enforcing immigration law. Instead, the choice is whether the decisions about what immigration policy look like will be shaped by our political leaders or instead left to the whim and caprice of line-level enforcement agents, deep in the immigration enforcement bureaucracy.
So we think the former is a much better approach than the latter. But, that does show that the enormous shadow system itself represents a kind of failure and an opportunity for reform. And so in our view, rather than simply trying to curtail the president's power, what Congress, working with the president, needs to do is first, figure out a way to dramatically shrink or eliminate the shadow system. That's going to require, in part, a legalization program, which we've had before. But it's also going to require changing the immigration codes to prevent the reemergence of a kind of shadow population in the future. Other systems in America, like our criminal justice system, have baked in rules that help us do this. Things like statutes of limitation, which put limits on how far back into the past the government can reach to punish people for their prior decisions.
The immigration system doesn't have those limits. It needs them. If we can adopt those limits and eliminate the shadow system, then we think there's a very constructive role for the president to play, because it is true that immigration is an area where the conditions in the world economically, politically, and socially change all the time. And so we need a responsive, flexible regime. And so at the end of the day, we do need the president and the administrative state to play a significant role because they can respond flexibly to changing circumstances, like a COVID crisis or an economic recession, in a way that Congress is unlikely to be able to.
Jeffrey Rosen: [00:43:27] Michael, a similar question to you: what is to be done? I guess I'll begin by asking you to think, do we have a constitutional problem? Has Congress ceded too much authority over immigration to the president and has the president siezed too much authority? And if so, what can be done about it? And, Joanne and Jay Crainis in our Q & A box ask, does Congress have the authority to adopt a veto-proof law to cut back and or eliminate the seemingly unfettered authority it has heretofore delegated to the president? But, over to you to share your thoughts about what is to be done.
Michael McConnell: [00:43:59] Well, as to--I am not an immigration policy person, so I don't, I can't give you a set of suggestions substantively about what should be done. I do think that the way Adam puts it as a bit of a red herring there. Of course there's going to be a vast role for the executive and for the administrative process, just as there is for, you know, all other kinds of law -- tax laws and environmental laws and so forth.
But the president can't just stop enforcing the portions of those laws that he doesn't like. I can't, you know, it really staggers me that to think that just because of people's agreement with Obama's specific policy here, that they would be willing to countenance the president simply, you know, changing major policy aspects of the regime as he himself admitted that he was doing and as his justice department, actually, said. Now, I think the immigration situation is obviously not working. I also believe without, you know, being able to get into the details of policy, that this ought to be the kind of issue that the two sides can get together on. I... in my casual conversations with people across political lines, this is not an unsolvable problem.
And I think that this is an example of where our political polarization is just a terrible impediment to, I mean, to being able to move forward. Now, the question from the audience member, I think is no. I mean, the Supreme Court has pretty clearly said that the Congress cannot exercise a legislative veto.
I think that that's a hard... that was a difficult, controversial case. And, but I don't... it's not on anybody's list of Supreme Court decisions that is up for a reconsideration that I'm aware of. I think that is, that is part of our system. I'm sure Congress can, if Congress went back and revived, you know, reconsidered major aspects of the Immigration and Naturalization acts I'm sure that they would be able to reassume some of the authority that presidents have taken, but the vast majority here, I think I agree with the author, with Adam and Cristina. Most of what we see isn't usurpation by the president, although I think there's been some of that by both Obama and Trump, but most of it isn't usurpation it's dereliction on the part of Congress, that Congress has passed sweeping delegations. And then, and then they love to complain about how the president exercises the power, but it was really their fault for giving him the power to begin with.
Jeffrey Rosen: [00:46:57] Well, I will take the moderator's prerogative to give Cristina the last word. And, Cristina, Michael closed by saying that he broadly agrees with you and Adam that the real problem is not excessive delegation, but dereliction; that the Congress has expressly delegated vast, even breathtaking discretion to the executive, but even so both presidents Obama and Trump in some cases have exceeded it. Do you... is that a fair statement of your common area of agreement? If there are any significant constitutional legal disagreements, maybe identify them and then please leave our audience with whatever final thoughts you think would be illuminating.
Christina Rodriguez: [00:47:36] I think it is a pretty fair statement of our zone of agreement, though I think we would have, happy and lively debates about the extent to which each of our two most recent presidents has exceeded the authorities that they do have. At sea, for example, our view of DACA and DAPA, which we actually think resembles the way that previous presidents, like Reagan and many of his successors have treated other dimensions of the enforcement system, trying to advance their say preference for allowing employers to employ out onto authorized workers and failing to enforce that regime. That's something that's been consistent across administrations to varying degrees. So there's a lot of room for disagreement there that both sounds in immigration policy, but also in thes kinds of constitutional questions and the separation of powers and what it means for the executive to be able to shape the meaning of a statutory regime through its enforcement choices, which is one of the dynamics that we bring to light.
But the... I guess the last thing that I would say is one of our goals in the book, in telling this history, is to emphasize that there are different kinds of executive power at work. And when thinking about whether the presidency is a constructive institution, as an institution that has become too imperial or abusive, it's vital to think about the different forms of executive power that the presidency at any moment in time might be exercising.
In our own view, the way in which the president is able to assert control over the immigration system through the exercise of the enforcement power is both on the one hand, perfectly constitutional, but also incredibly dangerous, and something that requires Congress to act in order to shrink this domain of enforcement; to make immigration status less contingent; to make immigration status something that a president has the capacity, not just to prevent someone from being deported, but to grant as well. And then to think about constructive dimensions of the presidency, like as Adam suggested, its ability to adapt on the ground by participating in, say, defining immigrant admissions or by giving the president a power that compliments the suspension power.
As Michael suggested, the president doesn't have significant power to admit immigrants in a time of crisis. He only has enforcement tools. Why not make the capacity to adapt a source of actual delegated power? And then finally, I'll end on a similar note to Michael, which is to say that a lot of what is wrong with our immigration regime today, and a lot of what is wrong, arguably, with the separation of powers is the fact that Congress has delegated sweeping authority to the president that is very difficult for Congress itself to reign in. And we tell the story time and again, of how Congress has tried to rein in the president, but has been unable because of a variety of structural factors as well as historical dynamics, but also that it is very difficult for the courts to reign in.
And it's therefore incumbent on Congress to think about the ways in which the immigration law give the president too much coercive power and not enough power to make our system work better in a modern economy and in a humanitarian fashion.
Jeffrey Rosen: [00:50:59] Thank you so much, Cristina Rodriguez, Michael McConnell, and Adam Cox for an illuminating civil and, extremely educational discussion of the president and immigration law friends who are watching: your homework, which I hope will be a pleasure is to read, Cristina and Adam's new book, "The President and Immigration Law," as well as Michael's forthcoming book, "The President Who Would Not Be King." And also, as always, continue to educate yourself about the Constitution. And the best way to do that is to go to the National Constitution Center's Interactive Constitution, which I'm putting in the chat box right now, and pick a clause of the Constitution that you didn't know about and dig in, read the best arguments by scholars of diverse perspectives about what they agree and disagree about. Read the early drafts of the constitution that informed the final text and join the National Constitution Center's new live online class about the Constitution, three times a week. My colleagues and I are going on zoom and offering free classes for middle school, high school, college students, and adult learners about every provision of the Constitution.
It is such a privilege to fulfill this mission, and if you've got kids learning remotely at home, or just want to continue to learn and grow yourselves as citizens, it would be an honor if you join us, live on zoom, or if you watch the YouTube archive videos. And once again, I'd like to thank Cristina, Adam, and Michael. Thank you so much for joining me.
Jackie McDermott: [00:52:31] This episode was engineered by the National Constitution Center's AV team and produced by me, Jackie McDermott, along with Taneya Tauber and Lana Ulrich. As always, please rate, review and subscribe to live at the National Constitution Center on Apple podcasts and join us back here next week.
On behalf of the National Constitution Center, I'm Jackie McDermott.
