Executive Governance Through Enforcement

Abstract

chapter grapples with the risks associated with executive governance through enforcement, tracing them to core and undisputed executive powers whose reach has been magnified in immigration law by the emergence of the shadow system. Two interrelated features of executive governance should prompt vigilance. First, when executive branch officials pursue a policy agenda through their management of the enforcement bureaucracy, discretionary decision-making drives their choices about how to threaten or wield force, as well as offer forbearance. It is natural to worry that this discretion will lead to the lawless, arbitrary exercise of power. Second, discretionary decision-making processes are often opaque. This feature exacerbates the possibility of abuse and makes it difficult to hold government power accountable. After defining these risks, the chapter then focuses on how the domain of de facto delegation can be structured to preserve the virtues of executive governance while promoting rule of law values. It offers a qualified defense of the centralized, political control of enforcement discretion as a means of disciplining the Executive’s awesome power.