Monday, January 30, 2023
Recently, I was asked by a reporter how the challenge to Biden's executive authority to issue a student loan relief program implicates immigration policy. The most pressing immigration example is the humanitarian parole program for Venezuelan and Cuban, Haitian, Nicaraguan asylum seekers. Other examples of immigration programs that rest on Presidential authority similarly rely on the president's constitutional powers or pure executive discretion similar to parole. These include special parole programs to benefit Ukraine, Haiti, Cuba, Central American youth, and historically military families, Filipino, Vietnam, Laos, and earlier waves of Haitians and Cubans. Afghanistan does not have a special program, but they fall into mechanisms for the evacuation and settlement of Afghan citizens following the military withdrawal. Whether or not they are legally authorized turns partly on the design of the program, as well as the Constitutional and statutory claims. (Stuart Anderson wrote about the refugee crisis on the Immigrationprof blog here.)
The other executive actions currently before the US Supreme Court include regulaton of the US-Mexico border through Title 42 and the DHS enforcement priorities. They may turn on cross-cutting issues about the INA and other substantive policies. The recent decision upholding Biden's decision to end the Migration Protection Protocols (and here) may bear on these rulings, too.
Still others challenges are to executive programs accompanied by agency actions (e.g. DACA) and primarily entail APA challenges. (Among other copious writings, see a compilation of the agency examples in my co-authored piece with Daimeon Shanks that will come out in the Maryland Law Review in a few weeks.)
What struck me about the inquiry is the number and range of programs under the Biden adminstration and on the heels of the Trump and Obama administrations. I was also struck by the range of other policy arenas that may be implicated, including the environment. What it points to is that immigration law has become a fertile site for understanding the core of administrative law; it is no longer an exceptional case.