Cristina Rodríguez, the Leighton Homer Surbeck Professor of Law at Yale University, gave the first speech in the 2019-2020 Presidential Colloquium Series on Thursday, September 19, 2019. Her lecture, “The President, Immigration Law, and the Politics of Constitutional Structure,” sought to provide greater insight into US immigration law by looking at historic and current tensions between executive and legislative powers.
Though “it’d be harder to script two greater contrasts” between the Obama and Trump administrations’ approaches to immigration policy, Rodríguez points out that both presidencies share a similarity: the reliance on executive, rather than legislative, methods to enact their vision. While in office, Obama used an executive order to create DACA, a program that allows undocumented immigrants who entered the US as children to temporarily stay in the country.
In 2017, by executive order, Trump paused the Refugee Resettlement Program and temporarily banned non US–citizens from seven Muslim-majority countries from entering the US. The actions of both administrations have led critics to wonder whether recent presidents have exercised too much power over immigration law, power that should be returned to the legislative branch. Rodríguez argues that this is far from a new trend. Historically, immigration law has been a “framework” within which presidents can intervene to determine specific details. Administrations past have used executive powers to “respond to legislative shortfalls” in a timely and flexible way, often to resolve conflicts in refugee cases or foreign policy.
That said, Rodríguez acknowledges that in the past, “executive powers have traditionally been more open to immigration than congressional powers,” and presidents have been, to put it delicately, more reasonable. Currently, we are faced with the question of whether to have “continued faith” in the dynamic of executive and congressional power or if there should be more checks and balances to presidential capabilities. Despite the Trump administration’s often incongruous justifications for their actions and their vision for immigration law, “which many of us may believe is morally bankrupt,” Rodríguez believes that the executive branch should “retain flexibility in shaping policies” in some key areas of immigration law, such as that of asylum seekers. As to concerns that the presidency might overstep its bounds, Rodríguez offers up hope by pointing to a few different avenues for solutions. One is through the judicial branches, where “lower courts have been more active in checking the constitutional legitimacy of executive actions.” Rodríguez also cites the Supreme Court case in June, where the Trump administration attempted to add a citizenship question to the census, as a promising sign, noting the Supreme Court’s findings that there was a “disconnect between the decision made and the explanation given” by the Trump administration. Rodríguez also highlights protests and political discourse as ways to make sure executive powers are being used in “reasonable” ways and that the justifications are founded in truth.
According to the Rhodes Project, Cristina Rodríguez became Yale Law School’s first Hispanic tenured law professor when she was hired in 2013. She previously served as Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. Her upcoming book, “The President and Immigration Law,” was co-written with Adam Cox and is expected for publication in May 2020.
