Delegating the Immigration Power
Nowadays, we take for granted the President’s authority over immigration. Presidents of both parties have decided important and contentious questions about the country’s approach to humanitarian protection, admissions, and deportations. In doing so, they have invoked authority delegated by statute. Where there is delegation, the nondelegation doctrine has something to say.
This Article considers whether (and to what extent) our separation of powers cabins Congress’s ability to delegate immigration matters to the President. I argue that the federal government’s power to regulate immigration finds home in both Article I and Article II: Congress is vested with the power to make rules about who may enter and stay in the United States; the President is vested with the discretion to decide whom—among the millions of people deportable under the rules created by Congress—to actually deport. The political branches have largely unchecked power within their respective domains. Framed this way, the President lacks inherent executive power to decide who is inadmissible or deportable. He may do so only to the extent authorized by Congress, and Congress may extend such authorizations only to the extent permitted by the nondelegation doctrine.
As we take stock of President Biden’s immigration record and as federal courts are asked to enjoin the entire gamut of President Trump’s immigration agenda, now is a good time to examine whether our immigration system is consistent with separation-of-powers first principles.
Cite as Brian Chen, Delegating the Immigration Power, 19 N.Y.U. J.L. & Liberty 72 (2025).