Prospects for comprehensive immigration reform look dim in light of past failures to enact legislation, such as the DREAM Act, and a continued period of divided government placing a skeptical Republican Congress in opposition to a sympathetic Democratic President. With legislative fixes for the United States’ immigration system unlikely in the near future, the Obama Administration will continue to press its immigration agenda via executive order and enforcement memorandum. Such initiatives do provide real short-term benefits, but they are by nature temporary and lack the ability to provide any permanent status to their beneficiaries. Importantly, however, they are not the only tools that the executive branch wields if it is intent on implementing certain reforms even in the face of a divided Congress. This Article focuses on a little used mechanism, Attorney General referral and review, which could play an efficacious role in the executive branch’s development and implementation of its immigration policy. This procedure permits the Attorney General to adjudicate individual immigration cases and thereby provide a definitive interpretation of law or institute new policy-based prescriptions to guide immigration officials in the future. Although used only four times by the Obama Administration, and sparingly in prior administrations, the history of its invocation establishes it as a powerful tool through which the executive branch can assert its prerogatives in the immigration field. Structurally, this Article presents both a historical overview of the referral authority and a doctrinal assessment of its prior use by modern Attorneys General. It also refutes common, but fundamentally misplaced, criticisms of the authority, including the purported lack of due process attendant upon referral. Finally, it concludes by considering certain proposals for reform that could make the authority a more robust avenue for executive branch immigration policy.
Vol 101 IOWA L. REV. No. 3 (March 2016)