The Administrative Law Review recently published an article written by Associate Professor Ming Hsu Chen, "Administrator-in-Chief: The President and Executive Action in Immigration Law" (69 Admin. L. Rev. 347).
Read the full article on Westlaw.
Chen is associate professor of law and director of the Citizenship and Equality Project.
This Article provides a framework for understanding the role of the President as the Administrator-in-Chief of the executive branch. Recent presidents, in the face of heated controversy and political division, have relied on executive action to advance their immigration policies. Which of these policies are legitimate, and which are vulnerable to challenge, will determine their legacy. This Article posits that the extent to which the President enhances the procedural legitimacy of agency actions strengthens the legacy of the policies when confronted regarding their substance. This emphasis on shoring up administrative procedure is a form of expertise that should be counted alongside traditional normative criteria such as political accountability, democratic participation, and efficiency. Institutional analysis of three of President Obama's immigration policies serve as case studies of a presidential attempt to strengthen the procedural legitimacy of substantively contentious policies: deferred action for long-term undocumented immigrants; immigration detention for immigrants with criminal histories; and priority docketing of recently-arrived immigrants seeking asylum. Interviews with Department of Homeland Security officials and other policymakers shed light on the internal dynamics of agency policies. This Article concludes with prescriptions for safeguarding the conditions under which executive action in immigration can be defended and rethinking the conditions under which it cannot.