The Executive Power of Process in Immigration Law

This article, part of an AALS symposium on executive power during the Obama administration, focuses on the role of procedure in the president’s implementation of immigration law. The president undeniably has power over immigration law, but the exact contours of that power are not clear. At times, the president acts via delegation from Congress. The president also may have inherent power over immigration law that is not dependent on a delegation. Such inherent power would be subject to the president’s discretion. Even when acting pursuant to delegated immigration power, the president operates within a wide ring of discretion granted by the delegation. While we debate the exact boundaries of executive power over immigration law and the extent of the president’s discretion, we must not forget that executive implementation of immigration law includes procedural power and that procedural mechanisms affect fairness: Does the executive implementation of immigration law function with just procedural mechanisms? This article explores the nature and variety of executive procedural power over immigration law by looking at examples from executive agencies that contribute to executive action in immigration law. This article identifies themes across the procedures that these agencies use to carry out immigration decision-making. These themes are: (1) the structure of executive branch implementation of immigration law is complex; (2) the use of agency guidance documents is a popular procedural choice; and (3) minimal process is a prominent feature. This article explores the implications of these themes and raises some questions for future inquiry. The procedural mechanisms that accompany the implementation of immigration law deserve sustained attention. Executive branch procedures are an essential element of the president’s power over immigration law