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Our Shadow Immigration System 我们的影子移民制度
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0005
Adam Cox, Cristina M. Rodríguez
This chapter explains how legal and institutional developments in immigration enforcement coincided with the dramatic acceleration of illegal immigration during the final third of the twentieth century. Together, these legal and demographic phenomena gave rise to a massive shadow immigration system that today operates alongside the formal immigration regime. This shadow system has rendered Congress’s intricate, detailed code of immigration rules increasingly less central to defining the content and character of the immigrant population. Instead, the Executive’s enforcement judgments—decisions about whom to target from the pool of deportable immigrants—have taken center stage. Indeed, the rise of the shadow system has effectively delegated vast screening authority to the President and other executive branch officials—authority that has culminated in events as dramatic as President Barack Obama’s Deferred Action for Childhood Arrivals (DACA). The large number of unauthorized immigrants living in the United States today amplifies the role of enforcement discretion and further entrenches the shadow immigration system.
本章解释了移民执法的法律和制度发展如何与二十世纪最后三分之一时期非法移民的急剧加速相吻合。这些法律和人口现象共同产生了一个庞大的影子移民系统,今天与正式移民制度一起运作。这种影子体系使得国会错综复杂、详细的移民法规在界定移民人口的内容和特征方面越来越不重要。相反,行政部门的执法判决——决定从被驱逐的移民中针对谁——占据了中心舞台。事实上,影子系统的兴起已经有效地将巨大的审查权力下放给了总统和其他行政部门的官员——这种权力在巴拉克·奥巴马总统的“童年来美暂缓遣返”(DACA)等戏剧性事件中达到顶峰。今天生活在美国的大量非法移民放大了执法自由裁量权的作用,并进一步巩固了影子移民制度。
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引用次数: 1
Sidelining the States 排挤美国
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0006
Adam Cox, Cristina M. Rodríguez
This chapter considers how federalism has played an important role in immigration enforcement and challenged presidents of both parties, thus helping to structure national debates over the place of immigrants in American society. The cooperation of state and local officials turns out to be critical to the project of locating and deporting immigration violators. Today, local officials work as formal and informal partners to the federal government, serve as sources of information and bureaucratic expertise, and provide personnel essential to federal enforcement efforts. The integration of federal and state officials into a single immigration enforcement bureaucracy has expanded and complicated the President’s power over immigration law. Particularly when immigration federalism has taken a partisan turn, powerful incentives have arisen for the President to co-opt, crush, or otherwise control local initiatives in order to push immigration policy in the administration’s preferred direction. Both the Obama and Trump eras provide vivid examples of this centralizing tendency. Presidential efforts to consolidate power in these circumstances has never been complete, however. Because the Executive Branch cannot escape its bureaucratic reliance on local institutions, the delegation of meaningful power to nonfederal officials remains part of the system whether presidential administrations like it or not.
本章考虑联邦制如何在移民执法中发挥重要作用,并挑战两党总统,从而帮助构建关于移民在美国社会中的地位的全国性辩论。事实证明,州和地方官员的合作对找到和驱逐违反移民法的人的项目至关重要。今天,地方官员作为联邦政府的正式和非正式合作伙伴,作为信息和官僚专业知识的来源,并为联邦执法工作提供必要的人员。将联邦和州官员整合到一个单一的移民执法机构中,扩大了总统对移民法的权力,并使其复杂化。特别是当移民联邦制出现党派倾向时,总统就会有强大的动机去拉拢、压制或以其他方式控制地方倡议,以便将移民政策推向政府喜欢的方向。奥巴马和特朗普时代都是这种集中化趋势的生动例子。然而,在这种情况下,总统巩固权力的努力从未完成。由于行政部门无法摆脱对地方机构的官僚主义依赖,无论总统政府喜欢与否,将有意义的权力委托给非联邦官员仍然是体制的一部分。
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引用次数: 0
Epilogue 后记
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0010
Adam Cox, Cristina M. Rodríguez
This epilogue explores the justifications for a radical reimagination of the immigration system—for an immigration law and politics that shrinks the domain of enforcement and limits the scope of executive power exercised through coercion. In a reconstituted regime, the Executive should not be sidelined, but rather delegated a different set of authorities. The system of de facto delegation that has driven immigration policymaking for two generations should be brought above board, supplanted by a model of de jure delegation. Doing so would retain a central role for the President in setting immigration policy but would marginalize the enforcement imperative at the heart of the current regime and place presidential immigration law on a footing that more closely resembles other arenas of the modern regulatory state. In order to begin this process, Congress must first drastically decrease the number of people who live under the perpetual threat of enforcement. A reform strategy must therefore begin with a legalization initiative for the current unauthorized population.
这篇结语探讨了对移民制度进行彻底重新构想的理由——一种缩小执法范围、限制通过强制行使行政权力范围的移民法律和政治。在改组后的制度下,行政部门不应被边缘化,而应被赋予一套不同的权力。两代人以来推动移民政策制定的事实上的授权制度应该被公开,取而代之的是法律上的授权模式。这样做将保留总统在制定移民政策方面的核心作用,但会边缘化当前制度核心的强制执行,并将总统移民法置于更接近现代监管国家其他领域的基础上。为了启动这一进程,国会必须首先大幅减少生活在执法威胁下的人数。因此,改革战略必须从目前非法人口的合法化倡议开始。
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引用次数: 0
The Deportation State 驱逐国家
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0004
Adam Cox, Cristina M. Rodríguez
This chapter examines the legal and bureaucratic transformations that gave rise to the deportation power in its contemporary form, providing a better understanding of how it operates as a significant source of presidential power. The story begins in the late nineteenth century, when Congress effectively created the legal authority and bureaucratic capacity the Executive needed to conduct immigration enforcement within the nation’s interior. Contrary to conventional wisdom, the rise of federal immigration legislation during this period did not mark a sharp break with an earlier, mythical period when the United States welcomed all comers. But it was not until this time that Congress began building the regulatory machinery for selecting immigrants that would turn the federal government into a potent force for controlling immigration. For the first time since the infamous Alien and Sedition Acts, Congress enacted laws making resident noncitizens deportable. Just as important, Congress began constructing institutions that would enable the federal government to turn the growing law of deportation into a reality on the ground. Today, deportation occupies much of the field of federal law enforcement. Indeed, the government deports hundreds of thousands of immigrants every year—far more people than are incarcerated in the entire federal prison system. In this chapter, we explain how this reality came to be.
本章考察了导致驱逐权以当代形式出现的法律和官僚体制变革,从而更好地理解它作为总统权力的重要来源是如何运作的。故事开始于19世纪后期,当时国会有效地建立了行政部门在国家内部执行移民执法所需的法律权威和官僚能力。与传统观点相反,这一时期联邦移民立法的兴起,并没有标志着美国早先欢迎所有来客的神话时期的急剧断裂。但直到这个时候,国会才开始建立选择移民的监管机制,这将使联邦政府成为控制移民的有力力量。自臭名昭著的《外国人法》和《煽动法》以来,国会第一次颁布了将非美国公民驱逐出境的法律。同样重要的是,国会开始建立制度,使联邦政府能够将日益增多的驱逐出境法律变成现实。今天,驱逐出境占据了联邦执法的大部分领域。事实上,政府每年驱逐成千上万的移民——远远超过整个联邦监狱系统关押的人数。在本章中,我们将解释这一现实是如何形成的。
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引用次数: 0
The Diplomatic Origins of Immigration Law 移民法的外交渊源
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0002
Adam Cox, Cristina M. Rodríguez
This chapter explores the origins of immigration law in the United States. Until the late nineteenth century Congress created few rules to govern immigration, beyond setting a uniform rule for naturalization. Instead, presidents facilitated immigration through the negotiation of commercial treaties that ensured reciprocal protections for foreign nationals in the United States and Americans abroad—first with nations in Europe, and later with China during the California Gold Rush. State and local governments simultaneously acted as de facto regulators through the use of their inspection and taxation powers. In the 1880s, however, circumstances changed. In response to growing resentment of Chinese immigration on the West Coast and pressure from eastern seaboard states struggling to manage immigrant flows, Congress finally enacted significant legislation, passing the Chinese Exclusion Acts and beginning the American experiment with immigration restriction. By the close of the twentieth century, foreign affairs and national defense were no longer necessary contexts for the assertion of broad presidential leadership or power. Presidents continued to rely on their foreign affairs powers to significant effect through World War II, and diplomacy remains relevant to immigration policy today. But the rise of the administrative state and the President’s role in steering an ever-expanding bureaucracy ultimately became the preeminent source of executive authority to control immigration law.
本章探讨美国移民法的起源。直到19世纪后期,国会除了制定统一的入籍规则外,几乎没有制定任何管理移民的规则。相反,总统们通过商业条约的谈判来促进移民,这些条约确保了对在美国的外国人和在国外的美国人的互惠保护——首先是与欧洲国家,后来在加利福尼亚淘金热期间与中国。州和地方政府通过使用他们的检查和征税权力同时充当事实上的监管者。然而,在19世纪80年代,情况发生了变化。为了应对西海岸对中国移民日益增长的不满,以及东部沿海各州努力管理移民流动的压力,国会最终颁布了重要的立法,通过了《排华法案》(Chinese Exclusion act),开始了美国限制移民的实验。到20世纪末,外交事务和国防不再是维护总统广泛领导或权力的必要背景。在第二次世界大战期间,总统继续依靠他们的外交权力产生重大影响,外交仍然与今天的移民政策有关。但行政国家的兴起,以及总统在管理不断扩大的官僚机构方面的作用,最终成为控制移民法的行政权力的卓越来源。
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引用次数: 0
Managing and Manufacturing Crisis 危机管理与制造
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0003
Adam Cox, Cristina M. Rodríguez
This chapter traces the origins of American refugee policy. Twentieth-century refugee policy provides a powerful example of how presidents have played a leading role in determining which noncitizens should be allowed to enter the United States, and it reflects the dynamism and creativity of executive governance. In the service of foreign affairs and humanitarianism, presidents of this era transformed bureaucratic tools meant to be case management devices, such as the parole power, into instruments for remaking the immigration system by their own lights. Perhaps not surprisingly, the specter of emergency frequently has propelled these presidential initiatives. Wartime labor shortages and sudden refugee crises have given rise to vivid examples of executive unilateralism. But much of the historical use of the parole power fits uncomfortably into an emergency framework: the statutory grant hardly looks like a delegation of emergency authority. The President’s influence over immigration instead has deeper roots. His role has extended far beyond responding rapidly in emergency contexts to exploiting seemingly limited powers to serve an administration’s ongoing foreign and domestic policy objectives.
这一章追溯了美国难民政策的起源。20世纪的难民政策提供了一个有力的例子,说明总统如何在决定哪些非公民应该被允许进入美国方面发挥主导作用,它反映了行政管理的活力和创造力。在外交事务和人道主义的服务中,这个时代的总统们把原本是案件管理工具的官僚工具,如假释权,变成了用自己的眼光改造移民制度的工具。也许不足为奇的是,紧急情况的幽灵经常推动总统的这些举措。战时劳动力短缺和突如其来的难民危机是行政单边主义的生动例子。但是,历史上假释权的大部分使用都不适合于紧急框架:法定授权几乎不像是紧急权力的授权。相反,总统对移民问题的影响有着更深的根源。他的角色远远超出了在紧急情况下迅速作出反应,而是利用看似有限的权力为政府当前的外交和国内政策目标服务。
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引用次数: 0
Executive Governance Through Enforcement 透过强制执行的行政管治
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0009
Adam Cox, Cristina M. Rodríguez
chapter grapples with the risks associated with executive governance through enforcement, tracing them to core and undisputed executive powers whose reach has been magnified in immigration law by the emergence of the shadow system. Two interrelated features of executive governance should prompt vigilance. First, when executive branch officials pursue a policy agenda through their management of the enforcement bureaucracy, discretionary decision-making drives their choices about how to threaten or wield force, as well as offer forbearance. It is natural to worry that this discretion will lead to the lawless, arbitrary exercise of power. Second, discretionary decision-making processes are often opaque. This feature exacerbates the possibility of abuse and makes it difficult to hold government power accountable. After defining these risks, the chapter then focuses on how the domain of de facto delegation can be structured to preserve the virtues of executive governance while promoting rule of law values. It offers a qualified defense of the centralized, political control of enforcement discretion as a means of disciplining the Executive’s awesome power.
本章探讨了通过执法与行政治理相关的风险,将其追溯到核心的、无可争议的行政权力,影子体系的出现扩大了这些权力在移民法中的影响范围。行政管理的两个相互关联的特点应引起警惕。首先,当行政部门官员通过对执法官僚机构的管理来追求政策议程时,自由裁量决策促使他们选择如何威胁或使用武力,以及提供宽容。人们自然会担心,这种自由裁量权将导致无法无天、专断地行使权力。其次,自由裁量的决策过程往往不透明。这一特点加剧了滥用权力的可能性,并使对政府权力的问责变得困难。在定义了这些风险之后,本章将重点讨论如何构建事实上的授权领域,以在促进法治价值的同时保持行政治理的优点。它为中央集权的政治控制执法自由裁量权提供了合格的辩护,作为约束行政部门强大权力的一种手段。
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引用次数: 0
Wither Legislative Supremacy? 立法至上主义消亡?
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0008
Adam Cox, Cristina M. Rodríguez
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.
本章评估了对总统通过强制执行制定政策的权力的核心批评,体现在大法官安东尼·肯尼迪(Anthony Kennedy)的感叹中,即奥巴马总统的救济计划将使政府“颠倒”。这种担心行政部门可能会将其执法权力转变为属于国会的立法权是错误的。总统移民法的历史凸显了其中的原因。在论证了通过律师在移民法典中查找国会优先事项来限制执法判决的不可能性之后,本章接着使用当代三权分立理论的术语解释并捍卫了一种双重原则的决策模式。行政部门作为共同负责人参与制定移民政策的治理,为立法机构提供了至关重要的补充,不仅通过检查立法过度和调整法律制度以应对法律在实地的影响,而且还通过扩大民主参与和决策的可能性。
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引用次数: 0
Controlling the Enforcement Bureaucracy 控制执法官僚
Pub Date : 2020-09-17 DOI: 10.1093/oso/9780190694364.003.0007
Adam Cox, Cristina M. Rodríguez
This chapter demonstrates how the President’s control over immigration policy depends intimately on the structure and culture of the enforcement bureaucracy. These features of the bureaucracy in turn shape presidential policymaking. In particular, low-level executive branch officials play a crucial role in effectuating the enforcement power, as they are the ones responsible for the daily exercise of discretion within the system. To see how these dynamics have played out within the Executive Branch, the chapter studies the Obama administration’s efforts to centralize enforcement discretion in order to control line-level agents and contrasts those efforts with the early decisions of the Trump administration. It focuses on the attempts by political officials to tame the discretion of Immigration and Customs Enforcement (ICE) agents. President Obama’s efforts to discipline the decision-making of these line officials culminated in his two signature initiatives designed to insulate upward of five million unauthorized immigrants from removal. The bureaucratic reality of presidential immigration law has been on display equally during President Trump’s administration, including through efforts to centralize control over discretion where doing so has proven necessary to advancing the President’s policy agenda.
本章展示了总统对移民政策的控制如何密切依赖于执法官僚机构的结构和文化。官僚机构的这些特征反过来又影响了总统的决策。特别是,低级行政部门官员在行使执法权方面发挥着至关重要的作用,因为他们负责在系统内日常行使自由裁量权。为了了解这些动态如何在行政部门中发挥作用,本章研究了奥巴马政府集中执法自由裁量权以控制一线代理人的努力,并将这些努力与特朗普政府的早期决定进行了对比。它的重点是政治官员试图驯服移民和海关执法局(ICE)特工的自由裁量权。奥巴马总统为约束这些官员的决策所做的努力,在他的两项标志性举措中达到了顶峰,这两项举措旨在使500多万非法移民免遭驱逐。在特朗普总统执政期间,总统移民法的官僚现实同样得到了体现,包括集中控制自由裁量权的努力,事实证明,这样做对推进总统的政策议程是必要的。
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引用次数: 0
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The President and Immigration Law
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