Thread by @YaelSchacher

Finally finished reading The President and Immigration Law. Of course agree all immigration policy is not fulfillment of Congressional will. But disagree thatCongressional intent is always too hard to discern--especially when it comes too the Refugee Act of 1980.

Fact of the matter is: Immigration policy starting in 1981 consistently ignored a very clear Congressional mandate: don't prevent people from seeking asylum.

Is the INA complicated: yes. But, to my mind, the way the 1996 law took away court review and gave more discretion to the executive has made things much worse.

I'm literally writing a book about discretion and asylum. I found the section of the Cox and Rodriguez book on how difficult it is for the President to control the bureaucracy the most interesting.

And, agree with Lucas Guttentag's excellent review in Lawfare that there's not enough attention to "up and down, backward and forward" way the courts have dealt with immigrant rights.

Sorry, Just Security, not Lawfare.

Cox and Rodriguez write "Uncertainty inheres in the legislative act, and the concrete consequences and social meaning of the law will become apparent only through its implementation."

Couldn't the same be said about policy memos by executive?

The fascinating role that unions of ICE, CBP, and USCIS employees play deserve a ton more attention.

During Trump admin, asylum officers union has filed amicus briefs against executive policies. In the past, DHS has also filed important briefs on asylum eligibility to BIA. The book got me thinking about layers of executive discretion and internal dynamics between them.

I have come to agree that a more centralized asylum system--one system, for example (not affirmative and also defensive system), and designated judges to hear appeals, and maybe even one centralized asylum office--would help matters.

As Cox & Rodriguez write: interdiction of asylum seekers elicited the first use of suspension power (212(f)) in 1981 in a way that had nothing to do with national security. Hence, when it comes to asylum, a rah rah for executive discretion seems misplaced.

Last: is it really executive action that ultimately leads to Congressional regularization? Or the fact that migrants themselves have made their way to the U.S. (despite executive enforcement efforts) and advocates have fought for them in court and pressured Congress?

Forgot to say: at time when Justice advised invoking 212f for interdiction in summer 1981, AG was ALSO pushing legislation that included a new power for Pres. to declare emergency in face of mass migration not clearly a threat to nat. security or economy. Didn't pass Congress!