Wither Legislative Supremacy?

Abstract

This chapter evaluates a central critique of the President’s power to make policy through enforcement, embodied in Justice Anthony Kennedy’s exclamation that President Obama’s relief initiatives would have turned the government “upside down.” This worry that the Executive might transform its authority to enforce the law into a legislative power that belongs to Congress is misplaced. The history of presidential immigration law underscores why. After demonstrating the impossibility of constraining enforcement judgments through a lawyerly search through the immigration code for congressional priorities, the chapter then explains and defends a two-principals model of decision-making, using the terms of contemporary separation of powers theory. The governance in which the Executive engages as a co-principal in the formulation of immigration policy provides a vital complement to the legislature, not only by checking legislative excess and adapting the legal regime in response to the effects of the law on the ground, but also by expanding possibilities for democratic engagement and policymaking within an otherwise sluggish system.