Volume 35

If Not Congress, Then Whom? Making the Case for Greater Legislative Oversight of Executive Immigration Policy

by Anashua Dutta

Few issues grab more headlines or heighten more political passions than questions of who among non-U.S. persons may enter, and stay, in this country. Under the Trump administration, these issues came to the fore from the administration’s first week in power, when the President’s first “travel ban” was implemented. The ban, which came on the heels of a campaign filled with Islamophobic statements and was written by individuals known for their hostility towards immigration, raised several questions of legality, among which was the role of the executive in determining who may enter the country. While much media coverage of the ban focused on litigation brought by affected individuals, non-profits, and state governments against the Trump administration, this Note will argue that when the topic in question is related to immigration, Congress can—and should—take a comprehensive and probing oversight role over the executive branch through legislative investigative functions.

Congressional investigations, whether conducted through letters requesting information, subpoenas, hearings, or a mix of the three, are fundamental to our system of government. The power to investigate, while not explicitly bestowed on Congress by the Constitution, is inherent in its lawmaking responsibilities. Not only do investigations allow lawmakers to assess pending legislation, gather information for future legislation, and oversee federal agencies, these investigations maintain our system of checks and balances, allowing the legislative branch to oversee the executive branch in a way that the judicial branch cannot. While private citizens have repeatedly sued the executive branch, such cases require the plaintiff to show actual injury from the challenged executive actions (or inactions). Failure to demonstrate standing has thrown many plaintiffs out of court and left many questionable executive branch policies and programs intact. Unlike the judicial branch, the legislative branch does not have to show injury (or causation and redressability, for that matter): it has the inherent power to investigate the executive branch either to inform current and future legislation or to oversee operations on executive policies and programs. Furthermore, due to the jurisprudence of the Supreme Court, only the executive and legislative branches can make decisions on immigration matters for the most part.

Of all the issues the executive oversees, there are few that merit aggressive congressional oversight more than immigration policy. Reasons for this importance include constitutional, institutional, and ethical considerations. First, due to the development of constitutional jurisprudence, the judiciary is largely unable to oversee the executive branch on immigration matters. Second, immigration is an issue on which Congress can—and must—make law, and it should exercise its investigative functions to both gather information and oversee the executive branch. Finally, Congress has a duty, from the perspectives of legal and normative ethics, to check the executive branch when it is engaging in practices that run counter to the spirit and substance of this country’s laws and values.

There are undoubtedly drawbacks to this argument. Aggressive congressional oversight of executive action on immigration will not always unfold in a way that brings about the most humanitarian outcome in the short term. Congressional oversight of executive actions on pro-humanitarian immigration policies, such as the Deferred Action for Childhood Arrivals policy promulgated under the Obama administration, may result in short-term political pressure to rescind such policies. Yet, investigations conducted in good faith to investigate and oversee questionable executive branch policies can bring about desirable long-term institutional effects. Congressional investigations into executive immigration actions force the executive branch to publicly disclose its motivations for taking these actions; such a process cannot be replicated in a case before a traditional Article III court.

In recent history, the executive branch has been active on immigration matters, with both the Obama and Trump administrations—the latter especially—issuing a flurry of executive orders on the issue. Executive resort to executive actions is due in part to gridlock in the legislature and in part to the ease of issuing such an action; executive orders, while they may be challenged by the legislature or in court, only require presidential sign-off and have been referred to as “instant law.” Congressional oversight of executive actions on immigration, motivated by concerns that the executive has encroached into lawmaking, could emphasize the lack of Congressional action on immigration, and perhaps bring about calls for greater accountability for Congress to fulfill its legislative responsibilities.

This Note will argue that congressional investigations into executive actions on immigration are crucial, for constitutional, institutional, and ethical reasons. Part I will explain why the constitutional limitations on judicial oversight of executive actions on immigration necessitates stronger congressional investigations. Part II will discuss Congress’ duty to investigate and oversee the executive branch. This discussion will be conducted through a case study of the congressional investigation into the travel ban. Part III will then make the case that representatives hold an ethical duty to investigate executive misconduct on immigration. This ethical duty has both normative and legal elements; the former rooted in the duty to correct a wrong when one is in the position to do so, and the latter rooted in comment 7 to Model Rule 8.4, which posits that “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens.” The Note will conclude by re-emphasizing the significance of congressional investigations to the integrity of our government, especially when those investigations inquire into a topic as consequential as immigration.

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