Immigration Article of the Day: Immigration Enforcement And The Major Questions Doctrine by Amelia Wilson
Immigration Enforcement And The Major Questions Doctrine by Amelia Wilson
Abstract
This Article harnesses a doctrine traditionally central to conservative causes and jurisprudence to challenge a new instrument in the Trump Administration’s immigration enforcement regime. Specifically, it examines the Department of Homeland Security (DHS)’s reliance on the Alien Registration Act of 1940 in creating a universal immigrant registration that imposes strict criminal liabilities for noncompliance. This Article contends that the agency’s implementation amounts to unheralded and transformative regulatory rulemaking that runs afoul of the Supreme Court’s “major questions doctrine.” By leveraging registration requirements to effect sweeping policy and enforcement outcomes, DHS asserted authority of vast economic and political significance without clear congressional authorization. As such, courts should invalidate it.
The Article makes a number of unique contributions. It situates the Alien Registration Requirement within a broader expansion of executive power; it identifies the constitutional tensions that arise when executive agencies convert ancillary statutory mechanisms into primary enforcement tools; and it explains why the asserted authority exceeds permissible interpretive bounds.
Additionally, it creates a litigation strategy that, if successful, could serve as a model to confront an increasingly authoritarian Executive. Curtailing DHS’ rapid rulemaking serves the additional purpose of forcing Congress to speak explicitly on whether a universal registration (and extreme targeting and punishment of immigrants through the same) is the will of the people.
