Executive Foreign Affairs Power and Immigration Relief

Mitchell R. VanLandingham

Volume 69, Issue 1, 353-386

This Note addresses whether the president may take action on immigration as an exercise of foreign affairs power. In particular, it focuses on DACA and DAPA, two Obama-era policies of deferred action for certain classes of undocumented immigrants. Exactly how much authority a president and his executive departments should have over immigration without running afoul of Congress’s Article I power “to create a uniform Rule of Naturalization” is still unsettled. Furthermore, it is shaded in public debate by partisan views on immigration and how much power a given party thinks its own president should have.

As immigrants still formally owe their allegiance to a foreign sovereign, might the executive branch perform lenient or ameliorative actions over them via executive foreign affairs power? Would that only add to the trend of creating a more monarchical presidency? What would the boundaries of this power look like? This Note posits that presidential foreign affairs authority, based on past practice, supports the president’s power to offer limited forms of immigration relief, at least in the absence of clear congressional prohibition, if the president judges that denying such relief might have foreign affairs consequences.

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