Monday, May 3, 2021
The Illinois Law Review has just published a symposium covering President Biden’s First 100 Days. Two of the contributions come from immprofs.
In Immigration Enforcement, Strategic Entrenchment, and the Dead Hand of the Trump Presidency, immprof Anil Kalhan (Drexel) explores the Texas-governor led lawsuit to thwart Acting Secretary of Homeland Security David Pekoske's order of an immediate, partial moratorium on deportation of certain noncitizens with final orders of removal for the first 100 days of the Biden presidency, pending a comprehensive review of all immigration enforcement policies and practices. U.S. District Judge Drew Tipton blocked the Biden administration from implementing its partial moratorium on a nationwide basis. This suit, Kalhan writes: "offer[s] a window into the methods that a federal judiciary aggressively packed with Trump appointees may use to become an eager, active collaborator in those partisan efforts to undermine the new administration’s policy agenda." What follows is a compelling and thorough takedown of the Tipton opinion.
In Restructuring Immigration Enforcement Federalism Pratheepan "Deep" Gulasekaram (Santa Clara) continues his excellent work on immigraiton federalism, focusing on " the possibilities the first 100 days of a Biden presidency holds for resetting the relationship between the federal government and states and localities vis-à-vis immigration enforcement and immigrant integration."
First, as he has already begun to do in his first 100 days, Biden can use the federal government’s litigation discretion to roll back Trump-era crackdowns on so-called “sanctuary cities”, and to curb the proliferation of state-level immigration enforcement. Second, he may, consistent with federal law and presidential authority, eliminate or scale-back existing administrative arrangements that incorporate states and localities into enforcement schemes. While both these changes are well-within Biden’s executive authority, presidential restructuring of enforcement federalism also faces formidable obstacles. Chief among them are the political economy of immigration enforcement that strongly incentivizes state and local integration into federal enforcement, and an immigration agency culture geared towards hyper-enforcement. This essay concludes by suggesting that Biden’s proposed immigration legislation, if enacted, and his administration’s relationship with integrationist-minded states, may offer a path to overcoming these challenges.