*This is the seventh post in a series on Adam Cox and Cristina Rodríguez’s book, The President and Immigration Law. For earlier posts in the series, click here.

The President and Immigration Law is a tremendous achievement, and a must-read for anyone interested in immigration law.  It should also be required reading for those seeking to understand how the process of deportation came to be so deeply intertwined with criminal law enforcement. In this post, I focus on Cox and Rodríguez’s rich account of “de facto delegation” in the immigration enforcement system and connect it to pressing issues of criminal justice reform.  Cox and Rodríguez draw a fruitful analogy to the noted criminal law scholar William Stuntz’s account of criminal law: just as over-criminalization hands enormous enforcement power to criminal prosecutors to exercise discretion and to decide what laws on the books will be enforced, the Legislature has similarly transferred enforcement power to the Executive in the context of immigration enforcement – a process that Cox and Rodríguez label “de facto delegation.” As Cox and Rodríguez argue, “Executive officials effectively wield power to decide who belongs in the polity, and on what terms, simply by making the day-to-day judgments involved in enforcing the law.” (p. 112).

By highlighting how the President seeks to control the immigration enforcement bureaucracy, Cox and Rodríguez open up a fascinating set of questions about what safeguards are necessary to guard against the potential for government overreach.  As Cox and Rodríguez compellingly argue, the de facto delegation model gives Executive officials “only very blunt tools to work with.”  (p 238).  Cox and Rodríguez’s account is particularly vital in understanding how Presidential immigration law creates significant structural concerns with government coercion – ones that affect “[e]ven the best-intentioned leaders” as well as “racist demogogue[s].”  (p. 238).  These questions are of vital importance as we engage in the ongoing work of considering what a just immigration and criminal law enforcement process ought to be.

As Cox and Rodríguez discuss, the primary way that the Executive in recent years has exercised immigration enforcement discretion is through shifting the immigration enforcement bureaucracy into prisons and jails.  Secure Communities is an important example of the President using the bully pulpit to shape public perceptions of immigration enforcement.  In particular, by labeling jailhouse immigration screening as the “Secure Communities” program (as well as the now-defunct “Priority Enforcement Program”) the President signals that the objective is to engage in a targeted model of enforcement.  The aim of this approach is to gather information about those in criminal custody and decide who ought to be placed in removal proceedings.  Jailhouse immigration screening is a targeted model of enforcement if one compares who is removed to the vast number of those residing within the borders of the United States who are legally removable.  At the same time, jailhouse immigration screening is also a massive expansion of the reach of the immigration enforcement bureaucracy.  As Cox and Rodríguez note, immigration enforcement officials have limited resources to engage in screening. By coupling immigration screening to the massive engine of the criminal justice system, immigration screening reaches far more people than ever before.  One out of three individuals will be arrested by the age of twenty-three, and these arrests are overwhelmingly for low-level offenses.  Each of these arrested individuals is now subject to immigration screening.  

One concern with this approach, as Cox and Rodríguez discuss, is how effectively the Executive can tame the enforcement discretion exercised by line immigration officials.  Cox and Rodríguez offer a fascinating discussion of why high-level Executive priorities for exercising discretion might not be sufficient – for instance, because of a bureaucratic culture of enforcement that leads to disregarding high-level enforcement priorities or because line-level officials necessarily need to exercise significant discretion themselves in choosing whom to select for removal.  (p. 170-174). An additional concern, one that I develop in “Jailhouse Immigration Screening,”¹1.Forthcoming in the Duke Law Journal. is that the process of conducting screening in the jailhouse makes the front-end process of criminal arrest and detention lengthier.  If line-level immigration officials send immigration detainers to jails – even if they ultimately decide not to proceed with removal – the detainer itself can affect the criminal law enforcement process by systemically leading to worse pleas and to pretrial detention.  During a time when there is widespread awareness of how police officers use (and abuse) their discretion to arrest, one concern is that this approach subjects those suspected of committing crime to worse treatment within the criminal justice system because of suspected immigration status.  

Cox and Rodríguez’s account of de facto delegation is of vital importance in unpacking how this approach came to be.  It has much to offer criminal law scholars as well as immigration scholars who seek to understand how discretionary criminal arrest decisions affect communities disproportionately subject to low-level arrest.

Eisha Jain is a professor of law at the University of North Carolina at Chapel Hill School of Law.