Deep Dive Episode 188 – Immigration Policymaking in the Biden Administration

Motivated in part by Congress’s failure to modernize immigration policy in the United States, Presidents in recent years have turned to administrative law and the regulatory process to make major immigration policy. The Obama Administration’s DACA and DAPA immigration policies come immediately to mind. So does the Trump Administration’s attempted rescission of DACA, among other regulatory or executive branch actions such as the travel ban, regulation of “sanctuary” cities, and major adjudicative and rulemaking policy changes to asylum and related relief.

Now that regulation is the primary means for immigration lawmaking, scholars, judges, and government officials have begun debating the proper regulatory processes for promulgating major immigration policy. In her book Beyond Deportation, for example, Professor Shoba Sivaprasad Wadhia has examined the value of rulemaking over agency guidance for major immigration policy and related relief. In a recent coauthored Duke Law Journal article, Professor Christopher Walker has joined Professor Wadhia to argue that the Biden Administration should shift the immigration policymaking default from administrative adjudication to notice-and-comment rulemaking (and not seek Chevron deference in immigration adjudication).

In this episode, an expert panel explores these arguments regarding the appropriate regulatory process for immigration policymaking and how the Biden Administration (and the federal courts) have already started to take up this call to action. Professors Wadhia and Walker are joined by Professors Susan Dudley and Richard Pierce, both of whom have deep expertise in administrative law and regulatory process.

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Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

Male Speaker:  On July 12th, 2021, the Regulatory Transparency Project hosted an expert panel for a discussion on immigration policymaking in the Biden administration. The following is a recording from that event. We hope you enjoy the conversation. 

 

Nathan Kaczmarek:  Good afternoon. Welcome to this Regulatory Transparency Project webinar. This afternoon’s topic is a timely and important one: Immigration Policymaking in the Biden Administration. My name is Nate Kaczmarek. I am Vice President and Director of the Regulatory Transparency Project. As always, please note that all expressions of opinion are those of our guests.

 

Our moderator today is Susan Dudley, and we are always fortunate when that is the case. Susan is the director of the George Washington University Regulatory Study Center, which she established in 2009 to raise awareness of regulations’ effects and improved regulatory policy through research, education, and outreach. She is also a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration. 

 

If you’d like to learn more about Susan and all of our experts today, you can visit our website, regproject.org. That’s R-E-G project dot org, where we have listed all of their complete bios. 

 

In a moment, I’ll turn it over to Susan. Once our panel has discussed our topic, we’ll go to audience Q&A, so please think of the questions you’d like to ask them. Audience questions can be submitted via the Zoom chat or by using the raised-hand function, and we will call on you directly. With that, thank you to our panel for being with us today. Susan, the floor is yours.

 

Susan Dudley:  So let me start with introductions in the order that our speakers will make opening remarks. First, we’re going to hear from Shoba Sivaprasad Wadhia. She’s Associate Dean for Diversity Equity Inclusion; the Samuel Weiss Faculty Scholar; and Clinical Professor of Law at Penn State, where she is also the Founder and Director of the Center for Immigrations Rights Clinic.

 

Her research and teaching focus on immigration and asylum law, prosecutorial discretion, and the intersection of race, national security, and immigration. She’s the author of two books on this subject. One is Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases, and the more recent one is Banned: Immigration Enforcement in the Time of Trump

 

Next, we’ll hear from Chris Walker, who is the John Bricker Professor of Law at The Ohio State University Moritz College of Law. He also serves as Chair of the American Bar Association’s Section of Administrative Law and Regulatory Practice and as a public member of the Administrative Conference of the United States. His book, Constraining Bureaucracy Beyond Judicial Review, is forthcoming from Cambridge University Press. 

 

And last but not least, we’ll hear from Dick Pearce. Dick is the Lyle T. Alverson Professor of Law at the George Washington University. He’s written over 20 books and 130 articles on administrative law. His books and articles have been cited in 100s of judicial opinions, including over a dozen opinions of the U.S. Supreme Court. And with that, let me turn things over to Shoba.

 

Shoba Sivaprasad Wadhia:  Thank you, Susan, and really honored to be here and join the discussion as your immigration expert, and really want to kick off by sharing that, for decades, much of immigration law and policy has been generated through guidance documents, sub-regulatory tools. Even though we have a thick set of regulations, in Title VIII of the Code of Federal Regulations, we also have reams of paper and telephone directory-sized policies that have really informed and animated immigration policy for quite some time now.

 

I want to provide four examples of this sub-regulatory guidance, and I’m going to use some more recent examples because they might be more accessible. And I might cheat a little and give you, at least, one or two sentence descriptions of what the actual policies or tools did because I think the human impact also really matters. 

 

So interim final rule: this is an instrument that has been used over years and most recently in the Trump administration. And we saw restrictions to remedy and immigration called asylum through the interim final rule. One was an “asylum ban,” that was issued as an interim final rule along with a proclamation in 2018 that would have stripped asylum eligibility for individuals who arrived at some place other than a port of entry along the U.S. southern border. 

So this might be an individual who is in between ports of entry. 

 

Similarly, an interim final rule was used to implement a policy called the transit rule, and this rule said that if you pass in other country, without seeking protection there, and arrive at the U.S. border, you are no longer eligible for asylum. Litigation did stop both of these bans, but it should also be noted that these bans were still in effect, in particular, the transit rule, for quite some time and impacted 1,000s of individuals and families. 

 

Next, I want to talk about executive orders and presidential proclamations. They sound very presidential, but they too are an example of sub-regulatory guidance in immigration. So we saw, for example, three travel or Muslim bans issued in the last administration. The first two were issued as executive orders and blocked the entry of nationals from countries with Muslim majority populations from receiving a Visa and entering the United States. 

 

Using Penn State, where I sit as an example, Penn State was the fourth most effected university in the country by the first executive order or travel ban. So these two versions were blocked by the courts, but a third version of the travel ban was issued as a presidential proclamation in 2017, and it went into effect on December 4th, 2017, and ran through Inauguration Day of this year when it was rescinded. 

 

I spoke to a former government official who had spent more than 15 years at the old agency, at the helm, Immigration and Naturalization Service. And during his tenure, executive orders were rarely used as a tool for policymaking, and I asked him to talk to me about choices. Because these are, in fact, discretionary choices, right, whether to use an executive order as an instrument or whether to publish a rule. And he said to me, “How much higher do you go if you want to comment or complain about an executive order? It’s a dramatically different way of doing business and not a better way. There’s no public input in the executive order process. Judgment is made by one or two people.” 

 

The third tool I want to talk about are Biden’s documents and memoranda. For many administrations, guidance documents have been plentiful. The three agencies at DHS that administer immigration; ICE, Immigration Customs Enforcement; CBP, Customs Border Protection; and USCIS, U.S. Citizenship and Immigration Services, they issue reams of paper that then become policy, that boots on the ground, then implement. And I’ll use one example. 

 

There’s a term of art in the immigration statute called unlawful presence. It’s codified in the immigration statute, and it can be triggered when a person seeks admission to the United States, following a period without authorization. Unlawful presence has significant consequences because it could bar a person from admission for 3 years, 10 years, or permanently, and yet we have the statute and no regulations. Instead, the agency for decades has relied on paper. First, many memos, a medley of memos, then a consolidated memo that was over 50 pages, and later a spot in the U.S. CIS policy manual. 

 

Last, I want to talk about adjudications, and this last tool is really related to immigration decisions, and these are decisions that are made every day by agencies and people. One strand of these decisions are made by the Department of Justice’s Board of Immigration Appeals and the attorney general. Published Board of Immigration Appeals decisions and attorney general decisions are binding. They are currently afforded Chevron deference. Chris is going to talk later in a bit—maybe, in five minutes or less—about our argument for why these decisions and adjudications should not receive Chevron deference. 

 

So these rules, interim final rules, proclamations, and executive orders, guidance documents, and adjudications are distinguishable from notice-and-comment rulemaking. Kenneth Davis declared rulemaking one of the greatest inventions of modern government, and some of the values of notice-and-comment rulemaking are ones that I have interrogated in some earlier research. They include, for example, greater public input, greater transparency, greater public acceptability, which is, at least, the perception by the public that the government is issuing rules that are fair, that are open, greater consistency, especially, in outcomes when the facts are similarly relevant, and then finally, fairness. 

 

And portably, there may be instances where sub-regulatory guidance is preferrable or even necessary because of timing. But when there is significant immigration policy change, the default should be rulemaking, and we really see glimmers of this in the Biden administration just in the first six months. In February of this year, we saw an executive order by the Biden administration that included, for example, a promise for rulemaking around a term of art in immigration called particular social group. 

 

In June 16th, we saw two twin decisions, by the attorney general, vacating two earlier decisions around asylum and proposing and preferring a process for rulemaking. And then finally, just last week, on July 6th, the Department of Homeland Security signaled its intention to use notice-and-comment rulemaking to propose procedures that would shift some adjudications of asylum claims for those with a credible fear of persecution, from immigration judges to asylum officers. So I hope that provides a good overview, and now I will turn it over to either Susan or Chris. 

 

Susan Dudley:  Thank you, Shoba. That was a great overview—at least, for me. Chris.

 

Christopher Walker:  Great. Well, it’s so much fun to be here. It’s been a thrill this last year to be collaborating with Shoba on this project, and I would just start out by echoing, in the Duke Law Journal Symposium issue last year—I’ll put a link to that in the chat—Shoba and I wrote a paper – our bottom line is we argued that Chevron deference shouldn’t apply in immigration adjudication but should apply in rulemaking. 

 

And I’ll walk through some of the reasons why, but what’s really undergirding that is an argument that immigration agencies and the president should shift the default for regulatory policymaking for major immigration policy from adjudication and from these other tools Shoba just mentioned: interim final rulemaking, guidance, and – why am I blanking on the third one? So what was the third one again?

 

Susan Dudley:  Adjudication.

 

Christopher Walker:  No. 

 

Shoba Sivaprasad Wadhia:  Proclamation.

 

Christopher Walker:  Oh, an executive order. Yeah. Presidential directives. Yeah, that’s right. And so we flushed that out in there. We started writing this last summer, before we had sense of what the election results would be, and then it was published shortly after the election. 

 

And one thing that we called on is for President Biden, or whoever would be the president, to nominate an attorney general that would commit to this, that would commit to shifting, at least, the default. That doesn’t mean that everything needs to go through notice-and-comment rulemaking, but the default needs to switch. And as Shoba mentioned, really an immigration law and policymaking at the agency level, it’s really shifted away from notice-and-comment rulemaking and much more towards these other tools. 

Now, in our paper, our focus is on adjudication, and it builds on a paper—by Aaron Neilson and Kristin Hickman that I’ll throw in the chat when I’m done—where they make a larger argument about how Chevron shouldn’t apply or should apply more narrowly to adjudications than to rulemakings. And in ours, we decided to do a deeper-dive case study into immigration adjudication, and the reasons why, which we argue why Chevron shouldn’t apply in adjudication and should apply in rulemaking, also, I think are good reasons for shifting the default from adjudication of rulemaking for major immigration policy more generally. 

 

And when you think about Chevron, there are usually four main rationales that come forward for why we have Chevron deference: agency expertise, comparative expertise compared to courts, right, that agencies have more expertise to implement the statute to make that policy decision; political accountability or some type of accountability; deliberative process, the types of process that agents can use instead of courts; and then somewhat to a lesser extent, but I think it’s important, uniformity and law. In other words, when an agency says with the law is, and it’s get deference for that, it’s going to apply to the whole federal system. Whereas, if you leave it to court, she might have a mish mash across the country until the Supreme Court weighs in. 

 

I’m not going to focus on that last one too much, but I am going to focus on expertise and process, and our paper on the expertise front, we make somewhat – for those who aren’t familiar with immigration law and especially immigration adjudication, it might seem counterintuitive, but we argue that there actually isn’t a lot of expertise being exercised by the Board of Immigration Appeals when they’re interpreting the Immigration Nationality Act, and that’s because a lot of it doesn’t actually implicate deep questions of immigration policy, or of foreign relations, or anything like that. 

 

And to the extent that it does, we argue that the rulemaking process provides a better way of leveraging the agency expertise because it involves the legislative counsel at the agency. It involves the policy experts, as opposed to just the immigration judges and Board of Immigration Appeals judges that are there. 

 

So if you’re thinking about agency expertise, maybe, in some other context, you have a much richer type of expertise that’s being exercised. But we argue—at least, in the immigration adjudication context—it’s a pretty weak factor or rationale. I want to just stop and flag that Sid Shapiro has developed, over time, this craft expertise argument, which I think does have some pull. In other words, these agency adjudicators are reviewing 100s of 1,000s of cases, and with each case, they develop a craft, a better understanding of the statute and regulatory scheme. 

 

And so compared to a generalist court, at least, we might want to defer to them more. Just speaking for myself, maybe not Shoba, that might be true with respect to the questions of fact or mixed questions of fact of law in the immigration context, perhaps, but not to questions of law. It really just doesn’t – having read lots of these decisions, there just doesn’t really seem to be a huge role for craft expertise. So that’s expertise. 

Now, related to expertise is process, right? An agency can be much more well-positioned to interpret a statute than a court or implement a statute than a court because they go through notice-and-comment rulemaking, right? They have to sit down with stakeholders and figure out what they’re going to do, leveraging the agency’s internal expertise to propose a rule. 

 

They, then, release it to the public for public comment so the public and experts, that aren’t inside the agency, can bring their expertise to bare, and then the agency has to go back and reconsider those comments seriously and perhaps do additional research and respond to them. And that process of notice-and-comment rulemaking really is a much, much, much more effective and efficient—not necessarily efficient—more effective than a court that doesn’t have any type of means for public comment, short of amicus brief filings. 

 

When you compare that to immigration adjudication, you see there are even bigger problems and not just because it’s – you have the same problem you have of judicial review with the court, but we add that there’s an additional problem that so many of these non-citizens aren’t represented by counsel. They’re navigating this process on their own—sometimes not in their first language. And so the extent that you’d even get expertise from anyone, other than the agency, than the judges at the agency, it could be really misplaced. So that’s on the deliberative process front—something that’s worth thinking through. 

 

And now on the political accountability front, yeah, there are strong arguments that the agency has political accountability, especially, when the attorney general’s the one making the final decision, but on the flip side, our argument isn’t that the agency shouldn’t be the first mover or shouldn’t even get Chevron deference; it should be through rulemaking and not adjudication, right? 

 

And so perhaps, at most, this is awash if you’re comparing all the Chevron factors. I think it’s more than awash, and Shoba and I explain this in the paper. Because from a political accountability perspective, it’s not just an election-matters argument; it’s also a “does the public have a say in the process? Does it have salience? Is the agency being held accountable to the public for its decisions?” And if you frame that way, notice-and-comment rulemaking again comes out as a far superior approach to making regulatory policy in immigration—at least, major regulatory policy. 

 

Now, again, we’re not arguing you get rid of these other tools. They all play important roles in different situations, even maybe for major immigration policy. Our main argument, though, is that we should shift the default and really go there, and I have to say, I’m thrilled to see President Biden and Attorney General Garland signaling that they’re shifting the default, that they’re not going to use adjudication to make the major policies, that they’re going to be shifting to rulemaking. 

 

They’ve got Cass Sunstein over at the Department of Homeland Security working there right now, and he has to be working on a DACA rule and many other rules that were previously done through guidance. And I think that’s a very welcomed development as well. 

So I’m thrilled to see that this administration has taken regulatory policymaking quite seriously in the immigration context. And I guess I’ll stop there, and they can tell us where we’re wrong, or maybe why we’re right. I don’t know. 

 

Richard Pierce:  Well, I’d love to disagree, but I have to confess, I agree with everything that Shoba and Chris said. Let me provide a somewhat different point of entry, and I’ll start with just first principles, that ideally the best way to make immigration policy or any other national policy is through legislation. 

 

And I give President Bush a lot of credit for having put a tremendous amount of energy into trying to get Congress to enact a comprehensive immigration reform statute, but it’s fair to say that his complete failure in that effort, even though he made it one of his major priorities, has served as an optic lesson to all of his successors, and I don’t think any president in his right mind would try to get Congress to tackle this issue today. It’s gotten even harder for Congress to enact any form of legislation, and immigration is one of the tougher ones. 

 

But then that takes us on a search for, well, what’s the second-best way of making immigration policy? And I’ll go through – well, actually, let me start there with one of the ways that the Trump administration used, which was to have completely unwritten policies. And I can kind of understand the appeal of this. If you have completely unwritten policies, it’s very hard to get and for the public to challenge them or to quarrel with them because it can’t even figure out what they are. 

 

And to my dismay, the D.C. Circuit actually went along with the Trump administration approach on this and said that unwritten policies are unreviewable. So, yeah, it’s very appealing, but horrible from public policy standpoint. It’s hard to imagine any worse way. Nobody knows what the policies are. There’s no way of maintaining a consistency. Zero transparency. There’s certainly no clarity. So I throw that one out as the absolute worse way of making new policy and announcing policy. 

 

So then we get to the list of other methods that have been used, not just by the Trump administration but by prior administrations as well that Shoba went through, and those certainly are better than the unwritten policies because they do provide some degree of transparency, and clarity, and standards by which performance can be measured in order to maintain some degree of consistency and predictability. 

 

But they are horribly lacking in a couple of important characteristics. One is durability. They come from the attorney general or the president, and if there’s any doubt about this before the last two years—I think it’s all gone now—that those people change. The new attorney general is likely to have a completely different perspective, and the new president is likely to have a completely different perspective. So you get no predictability, no sustainability, no durability at all if you use one of these instruments like an issuance of a guidance document, or an executive order, or one of these presidential adjudicated decisions. They really provide you nothing by way of durability. 

They also don’t provide any political accountability that is sustainable to any degree at all. Notice-and-comment rulemaking offers enormous advantages over those methods. First of all, even though I would not say that it is as democratic as the legislative process, but it’s certainly much more democratic than any of the other policy tools that are available to agencies because it involves a tremendous amount of public participation. And the courts are pretty good at making sure that agencies take the public participation seriously. 

 

And then once the decision is made, usually, the downside is it usually takes two or three years to go through a big notice-and-comment process, and it takes a bit of time to do it. But what you get at the end is a rule that has had much more diverse public input that is much more transparent than any other instrument and much more durable. 

 

We’re becoming an advertisement for Aaron Neilson, a very fine administrative law scholar at BYU, but Aaron wrote another very good article in which he talked about the advantage of rules that are issued through the notice-and-comment process. One of the big advantages is that they’re durable. They’re durable both because they reflect a lot of public input, and it has tended to be somewhat compromises the way that legislation inevitably always has to be, and hence something that a lot of attorney generals and presidents can live with comfortably for a long period of time. 

 

And they’re also hard to change. Just as they’re hard to issue, they’re hard to change, so you end up with much greater durability and greater accountability, political accountability, because it goes through some major rule. It’s going to go through the organization that Susan ran back in the Bush administration, the Office of Information on Regulatory Affairs in OMB, and that means it will have gotten the attention of, really, all of the other agencies of government. And they all would’ve had some say in it. 

 

And the eventual signoff is by somebody in the White House who is very close to the president, as [Juan O’Ira 28:51] had once put it to me. I knew I was close to the president when I apparently did something that displeased him, and I wound up with a little nick in my skull from a rock that seemed to come directly from his office to mine. So they’re very close to the president, and you get very good political accountability out of the process. So for all those reasons, I always like to have fun quarreling with Shoba and Chris. I don’t have any disagreements with them at all on this one.

 

Susan Dudley:  Thanks, Chris. We’re going to now talk amongst ourselves for a bit, but participants, please, if you have questions—I see there’s already one in the Q&A—do put your questions in that or in the chat box, and we’ll monitor that. Shoba and Chris, do you have any – are there things that you’d like to respond to that Dick said, or Shoba, that Chris said?

 

Shoba Sivaprasad Wadhia:  I can start. I think that we’re all agreeing with each other, but I think that itself is also very telling to the solution here. I did want to pick up on the recent decision Dick mentioned where unwritten policies are unreviewable and agree with you that it really creates some pretty challenging incentives for the administration to maybe continue that and avoid judicial review. But just from a view on the ground, many of the unwritten policies that were part of the concerns raised in the complaint were in fact the reality. So, for example, one of the concerns were that asylum seekers, both adults and children, were being put through what is supposed to be a threshold screening, or credible fear screening, and instead through a multi-hour adversarial process, without any kind of notice as to what was going to be asked or clarity on what the outcome was, like did they pass their fear screening. 

 

So at the Burkes County Residential Center, which was until recently one of the three family detention facilities in the United States—it’s here in Pennsylvania where I’m based—there were children as young as four being interrogated for hours upon hours. There was no written guidance or policy, but was given to attorneys, if they had one, or to the families themselves, but we knew that there were new policies in place, just based on what was being witnessed on the ground. 

 

So it’s also a good example for, what would it have meant for those unwritten policies to have not only been in writing but also put through a process and put through rulemaking? The legality or illegality would’ve been clear. The opportunity for judicial review—which we already took up court time, right, so how much are we really saving? —would’ve been clearer, and I think that some of the fairness issues that were raised would’ve been stronger in their claim.

 

Christopher Walker:  Yeah. I just want to jump in there too. And I think it’s something that – when we’re arguing for notice-and-comment rulemaking as being the gold standard in immigration policy, again, I feel like somewhat of a broken record, but I think it’s important – that doesn’t mean there aren’t times when the other tools are really important. Guidance can play a tremendously important role in helping lawyers and folks on the ground know what to do with respect to regulations that already been promulgated.

 

And same with adjudication. Sometimes, when you have inter-decisional inconsistencies in the adjudication system, having an adjudication decision that comes down that tries to help the trial of all agency adjudicators rule the same way, it can be really important. One innovation I really like that the Biden administration has signaled that they’re going to do is, in the Trump administration, as Shoba and I documented in the article, the attorney general issued a number of really major immigration policies in adjudication. And Attorney General Garland has announced, we’re going to undo those in adjudication, so we’re going to set aside those policies, but we’re going to provide a new – we’re now going to go through notice-and-comment rulemaking to figure out what is the best policy with respect to each of those issues. 

 

And I think that’s a really – Shoba and I talked about this the other day. I was like, “I wish I had thought of that when we were writing our paper.” Because one of the big arguments against our idea of notice-and-comment rulemaking being the default is, “Well, that locks in the prior administration’s major policies for years or, at least, for a year or so.” And not necessarily, right? This justice department has made it pretty clear that they can undo those policy adjudication, that they’re gong to do the serious hard work of figuring out what the better policy is through rulemaking. I think that’s something that can be applauded and a tool that can be used by future administrations as well. 

 

Susan Dudley:  So wearing my former OIRA hat, you all made excellent points about why notice-and-comment rulemaking is more transparent and politically accountable. One thing you didn’t mention is the requirements for the analysis to support the regulation, and that is, OIRA wear several hats. One of them is coordinating across the government, and Dick made that point, but another is ensuring that agencies have thought through, what will the benefits and what will the costs be? So in adjudication, you’re looking at an individual case, but if you’re making broader policy, is that something that you think is important or would it be just too hard to do for immigration cases anyway?

 

Christopher Walker:  Maybe, Shoba and I might have different takes on this, which is fair, which is one of the fun things about coauthoring with someone.

 

Susan Dudley:  We need some disagreement on this panel, Chris.

 

Christopher Walker:  In our article, we didn’t touch OMB review at all, and part of it is, we were really short on words, despite it being over 45 pages that – it grew, but it – those editors kept us pretty close to our word limit. But I think there’s tremendous benefits that come from rulemaking by 12866 and the requirement for – not just economic analysis but the rest of Circular A-4 of really looking at, what are the unintended consequences? What’s the baseline we’re regulating against? What are regulatory alternatives that might be more cost effective or might produce more benefits, net benefit? So I view that as a huge plus in the immigration adjudication context.

 

Now, the common criticism is about cost-benefit analysis and how it’s hard to quantify. I do wonder—I don’t know, Susan or Dick, or Shoba as well, if you have thoughts of—with the new Biden modernizing regulatory review, executive order, that came out the first day of his administration, where it said that, in addition to doing everything else that you normally do, I want all agencies to focus more on the effect this has on marginalized communities; the effective this has on climate; the effective that this – really sending a progressive vision for cost-benefit analysis. 

 

I wonder how that would play out here. I haven’t seen any developments yet. Maybe, I’ve missed them. I don’t think the Biden administration has really told us what that executive order means. That doesn’t surprise. He charged agencies to innovate and come up with ideas, but I do wonder how that would play out in the immigration context, and my guess is it would help align that kind of thoughtful cost-benefit-analysis process in a way that’s more consistent with what President Biden was elected to do. I don’t know. Shoba, I’ll stop there, and you can push back, which is completely fine.

 

Shoba Sivaprasad Wadhia:  Yeah. No, I haven’t either seen a lot about how it might affect immigration policy. There’s certainly a broader conversation about the neutrality of immigration law and policy and how it, because of its framework, affects marginalized immigrants, but I think that the jury’s still out on what the relationship is going to be between that charge and immigration policy in the future. 

 

Richard Pierce:  Yeah. Offhand, I don’t really see much of a nexus there. I think there are many other contexts in which those two factors, equity considerations, and effects on disadvantaged communities, and climate change, are certainly going to be relevant factors, and you can see how that emphasis could play out. I don’t see it happening much in immigration. 

 

Susan Dudley:  Yeah. I read in the memo that distributional impacts to really do a better job of looking at who is bearing the cost, who is receiving the benefits, until that’s distributed, and I can see that being important in this area.

 

Are there other comments you have on each other? We have a couple questions in the Q&A and one in the chat. 

 

Christopher Walker:  I’ve got other stuff, but maybe, let’s go to the questions first, and then we can circle back. 

 

Susan Dudley:  Okay. The first one that I saw was in the Q&A. I think I’m going to have these in the right order. I apologize if I don’t have the order right. So from Christopher Meling, “Does national security often rise in the immigration context as a reason not to conduct notice-and-comment rulemaking? If so, what are some of the common arguments used and how would you counter them?”

 

Shoba Sivaprasad Wadhia:  I might start, and then I’ll leave it to Chris and Dick to correct me or disagree with me. I would go one step further. National security, in my view, has long informed immigration policy and long been a proxy for immigration policy, not just in the rulemaking context or as a method to avoid notice-and-comment rulemaking but even in the rulemaking context, as we saw, for example, with the 9/11 registration programs, where a rule was published in the federal register for certain men from certain countries, almost the majority, except for North Korea, to visit an immigration office, and be interrogated, and fingerprinted, and photographed in ways that no other visitors were.

 

But to the specific question, yes, national security has been used. I’ve seen it most often when using good cause or the foreign affairs exception as a reason for why the agency is not in a position to engage in notice-and-comment rulemaking. Not every argument has been solid in my view. In fact, some may say – and the foreign affairs exception is another reason without actually having a detailed explanation for what that foreign affairs exception is. 

 

In the last administration, there have also been a nexus made between what might be occurring at the border, or emergencies at the border, and issues of national security as a way to bypass a notice-and-comment rulemaking. So some of the counter arguments to that might be that to dismantle that nexus, if there is in fact fact-based analysis to show that, for example, what is taking place at the border hasn’t changed in 10 years or 20 years, so there’s time, right? There isn’t an emergency in the way that you must avoid notice-and-comment rulemaking. 

 

Another counter argument is if there’s no explanation at all, at least, with respect to the transit rule, which was the second interim final rule I mentioned that made someone ineligible for asylum if they were in a third country before arriving at the border. That was eventually an interim final rule that was vacated for failure to go through notice-and-comment rulemaking. The government appealed it. It’s still pending, and then the government repromulgated the rule through notice-and-comment with notice-and-comment. So that’s a little bit of my response to your question, and I’d love for Chris or Dick to add. 

 

Christopher Walker:  Yeah. Let me just jump in real quick. So I think in the adjudication context, I don’t – Shoba and I, we don’t see this much, right, a real mass-security-type argument. I think Shoba’s examples are right, when there’s [inaudible 43:03] rulemaking, and notice-and-comment rulemaking, and interim final rulemaking, or guidance, or executive order. That’s one of our arguments, right, in the adjudication context is people raise expertise of national security or foreign relations, but if you look at the actual statutory ambiguities of issue, it’s seldom, if ever, what’s really there.

 

I did want to flag, and I put it in the chat, Patrick Glen, who’s been at the justice department for decades, working in the Office of Immigration and Litigation elsewhere, he wrote a response to our piece that was like, “You’re not right,” which I loved. And you should all definitely read it. I wish we had gotten it before we finished writing our piece because I think some things we’d respond to a little bit differently. 

 

But I do think one of his main arguments is somewhat along the lines of that question of, this is one area we think that presidential powers should be near its top, right, when you’re dealing with immigration. And I think that’s fair. Our response is the president still has this power. It’s just rulemaking is the better regulatory process to use, but I do think that’s part of it. 

 

On the national security issue, in particular, interim final rulemaking has its role, right? If there really is a national security issue, of course, the president, the attorney general, the secretary of homeland security, whoever’s charged in the statute, can use that tool. I guess Shoba and I are probably on the same page; although, we don’t write about it in the paper, that it’s vastly abused in the immigration context, and quite frankly, I think it’s abused across the administrative state. And Kristin Hickman and others have written pretty extensively about the abuse of interim final rulemaking.

 

Richard Pierce:  Yeah. I’ll just add a couple of points here. One is I agree with Chris’s statement. I think it’s quite rare, if ever, that concerns about national security issues should deter an agency from using rulemaking in a context of this type. In this context, it seems to me the biggest concern that you’d have is to make sure that no terrorist sneaks in through this process. And that’s really easy to address. 

To my knowledge, there are, at least, two terrorist watch lists that the government maintains. Now, they have a bit of a problem, as the Supreme Court actually pointed out in a case decided at the end of its term, that the names are often names that more than one person has. I’ve got a friend who has a client name, would you believe it’s Saddam Hussein. He happens to be a very good car salesman, and he doesn’t even have any roots in Iraq, but it’s very hard for him to return to his native country for a funeral or a wedding, and then to come back in the U.S., he still gets stopped, and the border security people say, “Oh, my goodness. We got you.” 

 

But what is very easy to do is establish a system, and I’m sure it’s there—I’m glad nobody has told me it’s there because it should be secret—where the security agencies get the lists of the applicants, and they compare them with their terrorist watchlists and then do whatever is necessary to find out “Is this the Saddam Hussein or the one who sells cars in rural Virginia?” So I think that’s really the only serious national security concern where I think it’s very easy to address in ways that I’m sure the intelligence community is now already addressing it.

 

Susan Dudley:  Thanks, everyone. I’m going to read another question from Alexander Glover. “How does current immigration policy affect interpreters, U.S. military employee places like Afghanistan and Iraq? One example making the news would be Zalmay Niazy, who currently faces deportation due to an interaction he had with the Taliban as a child, right? There are provisions with foreign nationals who served us in the theater.” Shoba, do you know the answer to that?

 

Shoba Sivaprasad Wadhia:  Sorry. Yeah. This is not an issue I have followed closely, nor my focused area of expertise, so with that caveat, we do have legislative provisions in place for certain interpreters. One category is called the Special Immigrant Visa. I know there’s been more attention being paid to relax those requirements now so that interpreters are able to more quickly enter the United States through that legislative vehicle.

 

In terms of people who are already here, who face deportation post entry, we have very broad provisions, very lengthy provisions in our immigration statute that make people deportable for national security and terrorism-related reasons, and what that interaction, with the individual example, looks like, may very well matter. I guess the final option, having not explored what options are already being explored by the agency, in this emergency situation, may be something outside of rulemaking, right? 

 

We have all been talking about situations where rulemaking may not be the best option when the timing really matters or there’s an emergency situation. There’s a tool in immigration law called parole, which is synonymous for entry. It is a provision that could allow individuals who are in danger to enter the United States lawfully, even though the entry itself would not be an admission, formally speaking.

 

Susan Dudley:  Anybody else on that one? We have another question on interim final rules. “What about the problem with DHS and INS issuing major regulations as interim that remain in place for decades? Each sectoral has a defense of standing, which is entirely a political doctrine as practiced by the courts.”

 

Christopher Walker:  Yeah. Someone covered this already. I think it’s abused. Interim final rulemaking’s provided in the Administrative Procedure Act if you can show cause. I think what we consider cause has been misconstrued. I think courts should construe it much more rigorously, and it’s abused, and not just in the immigration context, in others. I’m not sure about the standing point. As Shoba mentioned, I think in her introductory remarks, that plaintiffs have done a pretty good job at stopping two major interim rules that were issued by the Trump administration in the immigration context. 

 

So I think you can still challenge them. That’s not the issue in my mind. The bigger issue is that it just doesn’t use notice-and-comment rulemaking, right? It doesn’t leverage public expertise. A lot of times, it doesn’t even leverage well agency expertise, having read a lot of these, and I was trying to google it to find Kristin Hickman. Kristin Hickman and Aaron Neilson should be on here. We’ve mentioned them more than [inaudible 51:29]. But Kristin’s got a great article.

 

Susan Dudley:  Once I looked, Aaron was. Maybe, Aaron can jump in here. 

 

Christopher Walker:  But Kristin’s got a great article on this where she surveys the land of interim final rulemaking and makes a pretty, I think, important suggestions about how to reform judicial review to give the right incentives to agencies. 

 

Susan Dudley:  So I think that same person says, “You could spend five years litigating standing even before you get to the notice-and-comment issue.” 

 

Aaron, I don’t know if you do want to jump on and say something. Nate would have to unmute you, I guess. I do have one more question in the Q&A, so please, if you have another question, submit it or raise your hand, and Nate will call on you. 

 

All right. I’ll pose this last question that we have. “Should there be better monitoring of supervised release in defendants who are deported? It seems the policy is to do nothing until defendants are arrested after they’ve reentered illegally—maybe, numerous events of entry.” So Shoba, that’s another policy question, so maybe, that goes to you again.

 

Shoba Sivaprasad Wadhia:  Yes. So that’s a pretty big question, right? If I could situate it in this conversation, should there be rulemaking for somebody who has been ordered deported? I haven’t thought about that specific question or what – and also what the incentives would be for the government because that also sounds like that would be a cross-border policy that would involve costs and raise some efficiency concerns.

 

So I would really want to examine the cost-benefit analysis of having a policy, and I can say, just as a policy matter, those who are removed and reenter represent a very diverse population. So just the faces behind why people reenter is not one size fits all, but that’s a policy conversation for another webinar.

 

Richard Pierce:  Yeah. The only thing I’d add to that is that – and this is really a “how do you allocate scarce resources issue?” There are people that the U.S. deports and then monitors very carefully, wherever they go. But there aren’t that many because we don’t have an unlimited number of intelligence agents who can run around keeping tabs on people. 

 

And most people who are deported, well, there may be very good reasons that we’d rather not have them in the country, but they don’t pose much of a danger to the U.S. Those that are believed to pose a big danger to the U.S. are monitored. They’re just monitored in ways that you and I don’t know about and shouldn’t know about. 

 

Christopher Walker:  I do think it’s interesting that – again, I know nothing about the policy. I’m not going to go there, but I did like Shoba’s comment, if we are going to do more cost-benefit analysis and think of more rulemaking to address issues, which I’m not sure how rulemaking would work here, but just assuming it did, it would have results that would be, I think, really informative to the policymaking process, especially, on the cost-benefit side. 

 

My guess is that with limited resources, the government might in some ways even do less on that front, and that would have a greater net benefit. I don’t know. Just throwing that out there, but I’m really curious to see how this will play out more, particularly, how it’s going to interact with Biden’s approach to regulatory review. 

 

Susan Dudley:  Yeah. So benefit-cost analysis of immigration policy writ large and which approaches might be the most effective, yeah, given different goals. Oh, there’s another Q&Aer. Nate, is there anybody who has raised a hand? Okay. Eileen O’Connor has a question. Oh, she has not a question, a comment. “I might have misheard, but I thought I heard an earlier speaker refer to President Trump’s early ban on countries as a Muslim travel ban. This is a frequently used term, and it is a calumny.” Did I pronounce that right?

 

“The ban was on travel from countries whose governments were such that the identities of travelers could not be confirmed. Many largely majority Muslim countries were not affected, only those with no or poor recording, which happen to be majority Muslim.”

 

Richard Pierce:  Well, I guess all I can say is I’ve done a lot of research in writing on the various iterations of the travel ban, and that characterization, I think, is reasonably accurate as to the third travel ban, the one that was upheld by the Biden Supreme Court. I do not agree at all with that characterization of the first and second travel bans. 

 

They were frankly just pure crap that was based on nothing but a gut feeling that Muslims were bad, and the gap between the conversation that the president had with Rudy Guiliani in which he asked him, “How can I ban Muslims?” And the issuance of the first of the three travel bans was very brief. I don’t have any doubt what that was all about. But the third, I agree with the characterization of the third, and that, of course, is why the majority of the Supreme Court justices upheld the third.

 

Susan Dudley:  Right. I think we are at the end of our time. Does everybody want to make some concluding remarks? We’ll start with Shoba. And you don’t need to if you don’t want to.

 

Shoba Sivaprasad Wadhia:  Just wanted to thank my panelists and you, Susan, for moderating and also for our questions and comments. I think that it could be a whole day. The next time we have this conversation so we can talk both about substantive policy and also notice-and-comment rulemaking as procedure, and I’m looking forward to that conversation. 

 

Christopher Walker:  Yeah. I would just add my thanks also just – and Dick mentioned this, especially, since there’s no congressional action, immigration law and policy is going to continue to be administrative law, right? Some of the most fascinating issues that we’re going to be dealing with for regulatory process in administrative law are going to come from immigration. 

 

And I’ve seen in the classroom with students that immigration law is also drawing students towards administrative law, and so it’s this feeding back and forth. And I just hope that we do more conversations like this where we bring administrative law and immigration law experts together because there’s so much we can learn from each other about immigration law and about administrative law, so I’m really excited to see us do this today.

 

Susan Dudley:  Yeah. Me too. Dick, any concluding remarks?

 

Richard Pierce:  No. All I’d add, I guess, is there are a lot of difficult questions in this field, no question about it. The people of good heart and mind can sit and talk about the merits, not the procedures, but the merits of immigration law for a long time and have really sincere disagreements about very serious questions.

 

Susan Dudley:  I’d like to thank Nate, and the Regulatory Transparency Project, and everybody, all the great questions that we got from the participants. Nate, are you able to give us some verbal closing remarks?

 

Nathan Kaczmarek:  Hopefully, this time. Apologies to all for the initial issues, but really grateful to Susan, Dick, Shoba, and Chris for a wonderful conversation. We very much look forward to having each of you back again with us soon. To our audience, we certainly welcome your feedback at rtp@regproject.org. Thanks to everyone. Have a great day.

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

Richard Pierce

Lyle T. Alverson Professor of Law

George Washington University Law School


Shoba Sivaprasad Wadhia

Associate Dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar and Clinical Professor of Law, and Director, Center for Immigrants' Rights Clinic

The Pennsylvania State University


Christopher Walker

Professor of Law

Moritz College of Law, The Ohio State University


Susan Dudley

Director, GW Regulatory Studies Center & Distinguished Professor of Practice

Trachtenberg School of Public Policy & Public Administration, George Washington University


Regulatory Process

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