Constitutional Roundtable – Cristina Rodriguez

Constitutional Roundtable

presents

Cristina Rodriguez, Leighton Homer Surbeck Professor of Law at 
Yale Law School

12:30 – 2:00 p.m.

Wednesday, October 14, 2015

Location: Victoria College, Room VC 115

The Power to Enforce the Law: Presidential Power and American Immigration Policy

In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield over half the population of unauthorized immigrants from removal and enable them to work in the United States. These events have drawn renewed attention to the President’s power to shape immigration law. They also have reignited a longstanding controversy about whether constitutional limits exist on a central source of executive authority: the power to enforce the law.

In using the Obama relief policies to explore these dynamics, we make two central claims. First, it is futile to try to constrain the enforcement power by tying it to a search for congressional enforcement priorities. Congress has no discernible priorities when it comes to a very wide swath of enforcement activity—a reality especially true for immigration law today. The immigration code has evolved over time into a highly reticulated statute through the work of numerous Congresses and political coalitions. The modern structure of immigration law also effectively delegates vast screening authority to the President. Interlocking historical, political, and legislative developments have opened a tremendous gap between the law on the books and the law on the ground. Under these conditions, there can be no meaningful search for congressionally preferred screening criteria. Far from reflecting a faithful agent framework, then, immigration enforcement more closely resembles a two-principals model of policymaking—one in which the Executive can and should help construct the domain of regulation through its independent judgments about how and when to enforce the law.

Second, when exploring limits on the enforcement power, we should focus not on who benefits from enforcement discretion but on how the Executive institutionalizes its discretion. The Obama relief initiatives are innovative: they bind the exercise of prosecutorial discretion to a more rule-like decision-making process, constrain the judgments of line-level officials by subjecting them to centralized supervision, and render the exercise of enforcement discretion far more transparent to the public than is customary. These efforts to better organize the enforcement bureaucracy ultimately advance core rule of law values without undermining deterrence or legal compliance, as some critics have worried. Moreover, while our focus on discretion’s institutionalization requires contextualized judgments that may rarely translate into clear doctrinal rules to govern the enforcement power, we believe it is generally unnecessary and unwise to use constitutional law to limit the President’s authority over how to organize the enforcement bureaucracy.

Cristina M. Rodríguez was appointed Professor of Law at Yale Law School in January 2013. From 2011-2013, she served as Deputy Assistant Attorney General in the Office of Legal Counsel in the U.S. Department of Justice, and from 2004-2012 she was on the faculty at the NYU School of Law. Professor Rodriguez also has been a non-resident fellow at the Migration Policy Institute in Washington, D.C., a term member on the Council on Foreign Relations, and the Henry L. Stimson Visiting Professor of Law at Harvard Law School. Before entering academia, she clerked for Justice Sandra Day O’Connor of the U.S. Supreme Court and Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit. Professor Rodriguez’s fields of research and teaching include immigration law; constitutional law and theory; administrative law and process; language rights and language policy; and citizenship theory. Originally from San Antonio, Texas, she earned a B.A. in History from Yale College in 1995, a Master of Letters in Modern History in 1998 from Oxford University, where she was a Rhodes Scholar, and a J.D. from Yale Law School in 2000.