The Environmental Protection Agency is seeking public comment to help it identify “regulations that may be appropriate for repeal, replacement, or modification” in response to President Trump’s executive order directing agencies to conduct such inquiries. The EPA notice made me wonder if we will see a similar notice from the immigration agencies seeking similar input.
Trump’s executive order aims to “alleviate unnecessary regulatory burdens” by searching for regulations that “eliminate jobs,” “inhibit job creation,” “are outdated, unnecessary, or ineffective,” or “impose costs that exceed benefits.” I will not explore the wisdom of President Trump’s general regulatory approach here, but instead I want to think about what it says about immigration regulation if these regulatory rollback efforts are not applied to immigration law. Or if these efforts are applied to immigration law, how would that play out in an area of the law where the Trump Administration not only prefers regulation, but also wants more?
What would an effort to “alleviate unnecessary regulatory burdens” in immigration law look like? Would the Trump Administration conclude that in immigration law there is no such thing as an unnecessary regulatory burden? If immigration regulation could be unnecessarily burdensome, whose burdens would count? Would we be concerned only with the burden immigration law restrictions put on U.S. employers or the effects of immigration on U.S. workers? What about burdens on US citizen family members of undocumented individuals? What about the individual rights of non-citizens? Would the administration be open to a conclusion that immigration as whole does produce net benefits and does create jobs?
What if immigration law is simply excluded from these rollback efforts? A failure to include immigration law in its general call for regulatory rollback would cast immigration law as exceptional. We should ask why immigration law might be treated as exceptional. What is it about immigration law that makes it different? Is it that the regulated parties are foreign nationals rather than U.S. citizens? That is true, but foreign nationals are protected by the constitution in some circumstances, and immigration law does not just affect foreign nationals. It also affects many U.S. citizens. Many U.S. citizens benefit, either through job creation, innovations in science, or through family reunification. U.S. citizens also suffer detrimental effects of immigration law, for example when the government removes from the country a close family member from a mixed-status family. So what is it about immigration law that makes it different? Is it race? Is it national sovereignty? Is it fear? All of the above?
Questions about the exceptionalism of immigration law within administrative law also have implications for supporters of less restrictive immigration policies. What if the Trump Administration proposed an immigration regulatory rollback that better calibrated the implementation of the immigration statutes in ways that encourage job creation and are more effective at easing the immigration process? Would that be supported at the same time rollback efforts in other regulatory areas would be opposed? Does a lack of consistency matter? Or is there a unifying principle?