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).

This webinar 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.


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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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